Opinion
42582.
SUBMITTED FEBRUARY 8, 1967.
DECIDED MARCH 2, 1967.
Action on open account. Douglas City Court. Before Judge Waldroup.
Sumner Boatright, J. Laddie Boatright, for appellant.
Preston Preston, M. L. Preston, for appellee.
1. Testimony of a witness as to the facts from which books of account are made up is admissible as primary evidence.
2. Objections to the trial judge's charge should be made before the jury returns its verdict.
3. The trial judge did not err in excluding opinion testimony as to the value and the amount of labor necessary to construct the defendant's cabin.
SUBMITTED FEBRUARY 8, 1967 — DECIDED MARCH 2, 1967.
Frank Carson, doing business as Carson Lumber Company, brought an action on open account against Robert Haskins in the City Court of Douglas. The petition alleged that the defendant was indebted to the plaintiff in the amount of $1,059.79 for materials and labor.
Upon the trial of the case the plaintiff testified in substance that he had furnished to the defendant materials and labor for the building of a log cabin in the amount of $2,159.79; that the defendant had paid $1,100 on the account leaving a balance due of $1,059.79.
Haskins testified in substance that he had paid approximately $1,600 on the account, which amount was more than the price of the materials furnished and the sums advanced by the plaintiff for labor.
The jury returned a verdict for the plaintiff. The defendant filed a motion for new trial which was overruled and the case is here for review.
1. The appellant contends the plaintiff's testimony, as to the items of the account and the amount due, consisted of information acquired solely through records that were kept by a third person. Hence, he argues that such evidence was hearsay, without probative value, and did not authorize the verdict.
After having refreshed his memory by looking at the petition the plaintiff testified, without objection, as to the amount which had been paid on the account and how much was due thereon. Testimony of a witness as to the facts from which books of account are made up is admissible as primary evidence. Harper v. Hammond Sons, 13 Ga. App. 238 (3) ( 79 S.E. 44); Booth v. Schmoller Mueller Piano Co., 32 Ga. App. 35 (3) ( 122 S.E. 636); Code § 38-1707; Lenney v. Finley, 118 Ga. 427, 430 ( 45 S.E. 317).
While the evidence was in sharp conflict as to the sum due on the account and the amount of labor furnished to the defendant it was sufficient to support the verdict. Enumerations of error 1, 2, 3, 4, 5, 10 and 11 are without merit.
2. Enumerations of error 6 through 9 complain that: (1) the charge was not adjusted to the pleadings, issues and evidence; (2) the court erred in failing to give certain instructions to the jury, even without request. These objections, not having been made before the jury returned its verdict as required by Code Ann. § 70-207 (a) (Ga. L. 1965, pp. 18, 31; Ga. L. 1966, pp. 493, 498), are not considered.
3. The appellant insists in Enumerations of error 12 and 13 that the trial judge erred in refusing to allow two witnesses who were carpenters to testify as to the value and amount of labor necessary to construct a structure similar to the defendant's cabin. Assuming arguendo that the testimony would have been admissible, there was no proper foundation laid for its admission in the present case. The witnesses failed to testify as to several essential facts that would have been necessary to enable them to form a valid opinion as to the value of the cabin and the amount of labor necessary for its construction. One of the essentials lacking was that there was no evidence that either witness had been inside the cabin subsequent to its completion. Georgia Power Co. v. Livingston, 103 Ga. App. 512 (2) ( 119 S.E.2d 802). The testimony was properly excluded.
Judgment affirmed. Frankum, P. J., and Deen, J., concur.