Noble v. Hunt

• Decision Date: 23 May 1957
• Docket Number: 36685,No. 1,Nos. 36684,s. 36684,1
• Citation: 95 Ga.App. 804,99 S.E.2d 345
• Parties: F. E. NOBLE v. H. H. HUNT. H. H. HUNT v. F. E. NOBLE
• Court: Georgia Court of Appeals

Page 345

99 S.E.2d 345

95 Ga.App. 804

F. E. NOBLE v. H. H. HUNT.

H. H. HUNT v. F. E. NOBLE.

Nos. 36684, 36685.

Court of Appeals of Georgia, Division No. 1.

May 23, 1957.

Syllabus by the Court.

1. The plaintiff's petition was not subject to general demurrer, and was not subject to the special demurrer interposed by the defendant.

2, 3, 4. The special grounds of the motion for new trial complaining of certain excerpts from the charge do not show any reversible error requiring a reversal of the trial court's judgment denying the defendant's motion for new trial

5. The evidence authorized the verdict and the trial court did not err in denying the defendant's motion for new trial on the usual general grounds.

6. In an action on a quantum meruit basis for services rendered, interest does not begin to run until the date of verdict and judgment.

Harvey H. Hunt, d/b/a Harvey H. Hunt Company, brought an action against F. E. Noble seeking to recover for services rendered the defendant as a certified public accountant, it being alleged that the plaintiff was a certified public accountant. The defendant filed a general demurrer and a special demurrer to the petition, both of which were overruled. The plaintiff later amended his petition and prayed for interest at the rate of 7 percent from the time the alleged account became due. On the trial, at the conclusion of the evidence, the plaintiff made a motion for a directed verdict in the full amount sued for plus interest as prayed for in the petition as amended, which motion was denied. The jury returned a verdict for the plaintiff in the principal amount sued for and which verdict specified, 'No Interest.' The defendant filed a motion for new trial on the usual general grounds which he later amended so as to assign error on certain excerpts from the charge. The plaintiff filed a motion for a judgment non obstante veredicto in accordance with his motion for a directed verdict which would, if granted have allowed the plaintiff, interest at the rate of 7 percent from the time the principal amount sued for was alleged to have become due. Nither the defendant's motion for new trial as amended, nor the plaintiff's motion for a judgment non obstante veredicto was granted. In the main bill of exceptions the defendant excepts to the judgments of the trial court overruling his demurrers and denying his amended motion for new trial. In the cross-bill of exceptions the plaintiff contends that his motion for a judgment non obstante veredicto should have been granted.

Oliver C. Hancock, Atlanta, Carl T. Hudgins, Decatur, for plaintiff in error.

G. Seals Aiken, Atlanta, James A. Mackay, Decatur, for defendant in error.

NICHOLS, Judge.

1. The petition alleged that the defendant was indebted to the plaintiff for services rendered as a certified public accountant as shown by an exhibit attached to the petition, which exhibit was in part as follows: 'Professional services rendered: Handling of tax case for the years 1942, 1943, 1944, 1945 and 1946, during period May, 1948 to April 26, 1951, in which fraud was alleged, before the Penal Division, Attorney General's office, Southern Division Technical Staff and The Tax Court of the United States which resulted in elimination of prosecution for fraud and the ad valorem

                fraud penalty of $6,951.22  $2,850.00
                Paid-May 27, 1948           350.00
                                            ----------
                      Balance Due.          $2,500.00'
                

This exhibit contained a sworn statement by the plaintiff that the same was a true and correct statement of the amount due him by the defendant for such services.

The petition was not subject to general demurrer, nor was it subject to special demurrer because it did not contain a bill of particulars inasmuch as the exhibit attached to such petition and quoted from above informs the defendant of the services for which the plaintiff is seeking recovery. 'Unnecessarily minute and detailed statements are not required.' Louisville & Nashville R. Co. v. Barnwell, 131 Ga. 791 (4), 63 S.E. 501, 502. 'It is enough to state the account with such fullness and specification as will confine the plaintiff to a particular cause of action, and fairly apprize the defendant of the character of the demand, so as to enable him to prepare his defense.' Henry Darling, Inc., v. Harvey-Given Co., 40 Ga.App. 771, 777, 151 S.E. 518, 520. See also Page v. Virginia-Caro-lina Chemical co., 62 Ga.App. 727, 9 S.E.2d 857.

2. The first special ground of the defendant's motion for new trial complains of the following excerpt of the court's charge: 'The court charges you that the reasonable value of the services rendered, if not fixed by contract, would be of or the amount that is generally charged by certified public accountants for the same or like services in the same community and under the same or similar circumstances as exist in the case now on trial.'

In the case of Marshall v. Bahnsen, 1 Ga. App. 485, 57 S.E. 1006, this court said, 'The true question in such cases, where there is no express contract, is: What is the ordinary and reasonable charge made for such services by members of similar standing in the same profession.' The excerpt complained of in the present case was not reversible error for the charge given limited the plaintiff to the same recovery as would the rule stated in Marshall v. Bahnsen, supra.

3. Special ground 2 excepts to the following excerpt from the charge: 'I don't believe there is any issue in this case, gentlemen, on the question as to the fact that Mr. Hunt is a duly qualified, legally licensed certified public accountant.'

The defendant contends that under the pleadings the plaintiff had the burden to prove that he was a certified public accountant, and therefore this charge was reversible error.

The plaintiff alleged that he was a duly licensed certified public accountant, and the defendant, in his answer, alleged that he could neither admit nor deny this allegation of the petition as alleged. On the trial the plaintiff testified that he was a duly licensed certified public accountant, and there was no evidence to contradict this testimony. 'Although the pleadings made an issue of this, the evidence demanded a finding that such were the facts, and in a case like that it was not an expression of opinion as to what has been proved. 'Where a fact is established by the undisputed evidence, it is not error for the judge in his charge (to the jury), to assume or intimate that the fact has been proved.' Dexter Banking Company v. McCook, 7 Ga.App. 436(1), 67 S.E. 113.' Snellings v. Rickey, 57 Ga.App. 836, 838, 197 S.E. 44, 45. Therefore, this ground of the amended motion for new trial is without merit.

4. In the third special ground the defendant excepts to the italicized portion of the following excerpt from the court's charge: 'Now, Gentlemen, what I have just read to you is the plea and answer filed by the defendant. Now, gentlemen of the jury, the effect of the plea and answer filed...