McCoy v. Scarborough
| Decision Date | 01 March 1946 |
| Docket Number | 31133. |
| Citation | 37 S.E.2d 221,73 Ga.App. 519 |
| Parties | McCOY v. SCARBOROUGH. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. 'An assignment of error on a refusal to award a nonsuit will not be considered where, after such refusal, the case is submitted to the jury, and a motion for new trial is made which includes the ground that the verdict is contrary to the evidence and without evidence to support it.' Schaffer v. Moore, 59 Ga.App. 542(1), 2 S.E.2d 151.
2. A motion in the nature of a general demurrer to dismiss a petition on the ground that it shows on its face that the contract sued upon has not been fully performed by the plaintiff, will not be sustained where it also appears that such lack of performance was due to the fault of the defendant.
3. The charge complained of was not erroneous for any reason assigned.
4. It was not error for the trial court to fail to charge as complained of in the amended motion in the absence of a timely written request therefor.
5. The trial court has a broad discretion in considering a motion for mistrial based on alleged improper arguments of counsel, and its discretion will not be disturbed unless manifestly abused. Where the court promptly instructed the jury to disregard the alleged improper remarks and rebuked the attorney making them, it was not error to refuse to grant the motion for a mistrial.
6. A mere objection to alleged improper argument of counsel without more, is not sufficient to invoke a ruling of the court; and in the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the argument, it was not error for the court to fail to grant a mistrial or to instruct the jury.
G W. Scarborough sued R. L. McCoy for $610 alleged to be the balance due on a contract for painting and repairing the house and garage of the defendant. The plaintiff alleged that the contract price for the main job on the house was $1100 and that $10 was a reasonable charge for extra work in repairing the garage door authorized by the defendant, and that $500 had been paid to the plaintiff leaving the balance for which he sued. Plaintiff claimed that after he had done all of the work agreed upon except a little touching up, which unfinished work could have been completed for about $35, he was ordered off of the job by the defendant and not permitted to complete it. The plaintiff alleged other acts on the part of the defendant amounting to interference by him with the plaintiff's workers, which he contended brought about a breach of the contract by the defendant. The defendant admitted the contract but alleged that it was to be completed within three weeks, which was not done, and that the plaintiff did not use first class union painters on the job, as he had agreed to do, and that he did the work in an incompetent and unworkmanlike manner, injuring and damaging the defendant in the sum of $1210, including the $500 paid to the plaintiff. The defendant denied that he interfered with the plaintiff or his helpers in the doing of the work, and he prayed for judgment against the plaintiff for a breach of the contract in the sum stated. The court struck from the defendant's answer the claim for damages in the sum of $710, but submitted to the jury the item of $500 claimed by the defendant as damages in his cross action. No demurrer was filed to the petition of the plaintiff or to the cross action of the defendant. The jury found a verdict for the plaintiff for $600, with interest of $31.03.
During the trial the defendant moved for a nonsuit, which motion was renewed at a later stage of the trial, upon the ground that the evidence showed that the contract was never fully completed, and that there was no substantial completion of the contract by the plaintiff. These motions were overruled. Defendant also made a motion, in the nature of a general demurrer, to dismiss the petition of the plaintiff, on the ground that it showed on its face that the contract declared on was not completed by the plaintiff, and because the petition was not based on a quantum meruit or for damages flowing out of a breach of the contract. This motion was also overruled. Error is assigned on these rulings in the exceptions pendente lite duly filed and now before this court. The defendant made a motion for a new trial on the general grounds and amended it by adding four special grounds. Error is assigned also on the overruling of the motion for new trial as amended.
F. L. Breen and I. T. Cohen, both of Atlanta, for plaintiff in error.
Andrew A. Baumstark and Paul Ginsberg, both of Atlanta, for defendant in error.
1. Under previous rulings of this court and of the Supreme Court, the assignment of error based on the overruling of the motions for nonsuit will not be considered. 'An assignment of error on a refusal to award a nonsuit will not be considered where, after such refusal, the case is submitted to the jury, and a motion for new trial is made which includes the ground that the verdict is contrary to the evidence and without evidence to support it.' Schaffer v. Moore, 59 Ga.App. 542, 2 S.E.2d 151; Wakefield v. Lee, 18 Ga.App. 648, 90 S.E. 224; Fireman's Ins. Co. v. Blount, 52 Ga.App. 223, 224, 183 S.E. 111; Foremost Dairy Products Inc. v. Sawyer, 185 Ga. 702, 716(5), 196 S.E. 436.
2. The motion in the nature of a general demurrer to dismiss the petition of the plaintiff on the ground that the contract declared or had not been completed by the plaintiff was properly overruled. The petition alleged that the plaintiff's failure to complete the contract was brought about by the conduct of the defendant who ordered him off of the job, and who otherwise interfered with the plaintiff and his workmen in the completion of the work. While it is generally essential to allege and prove that a contract sued on has been fully performed, a lack of performance may be excused if it is alleged and proved that a failure to completely perform the contract was due to the fault of the defendant. See Neely v. Willard Bag & Mfg Co., 23 Ga.App. 598, 604, 99 S.E. 167, and citations; and Bancroft v. Conyers Realty Co., 63 Ga.App. 106(2), 10 S.E.2d 286. 'If the nonperformance (of the contract) is caused by the act or fault of the opposite party, that excuses the other party from performance.' Code, § 20-1104. We think the allegations of the petition relating to the failure of the plaintiff to fully perform the...
To continue reading
Request your trial
-
Jefferson Ins. Co. of New York v. Dunn, A96A2440
... ... See Lenox Drug Co. v. New England Jewelry Co., 16 Ga.App. 476(5), 85 S.E. 681, and citations." [224 Ga.App. 744] McCoy v. Scarborough, 73 Ga.App. 519, 524(6), 37 S.E.2d 221. In the case sub judice, Jefferson's bare objections to allegedly improper argument were ... ...
-
Hart v. State, 26152
...10 Ga.App. 742(1), 73 S.E. 1091; Lenox Drug Co. v. New England Jewelry Co., 16 Ga.App. 476(5), 85 S.E. 681; McCoy v. Scarborough, 73 Ga.App. 519, 524, 37 S.E.2d 221; Campbell v. State, 111 Ga.App. 219(5), 141 S.E.2d At the conclusion of the assistant district attorney's argument and after t......
-
Ogilvie v. Mangels
...Cir., 248 F.2d 725; O'Malley v. Cover, 8 Cir., 221 F.2d 156; 6551 Collins Avenue Corp. v. Millen, Fla., 97 So.2d 490; McCoy v. Scarborough, 73 Ga.App. 519, 37 S.E.2d 221; Spikings v. Ellis, 290 Ill.App. 585, 8 N.E.2d 962; Love v. Harris, 127 Ind.App. 505, 143 N.E.2d 450; Olson v. Barnick, 2......
-
American Oil Co. v. McCluskey
...Ga.App. 127] to the surface of conscious thought, was prejudicial to the defendants.' (Emphasis supplied.) Reliance on McCoy v. Scarborough, 73 Ga.App. 519, 37 S.E.2d 221 as authority for asking a contrary holding is misplaced. In that case plaintiff brought suit to recover $610 alleged to ......