Opinion
35960.
DECIDED MAY 3, 1956. REHEARING DENIED JUNE 26, 1956.
Action to recover attorney's fees. Before Judge Paschall, Presiding. Chattooga Superior Court. September 15, 1955.
Maddox Maddox, Earl B. Self, for plaintiff in error.
G. W. Langford, Jesse M. Sellers, Jr., Bobby Lee Cook, contra.
1. Where a petition has been previously adjudicated to set forth a cause of action, the plaintiff proves a prima facie case by the introduction of evidence which proves the case as laid and discloses no defense debarring his right of recovery.
2. Requested charges which contained instructions contrary to the law, and the law of the case as pronounced by this court, were properly refused.
3. Where inconsistent or contradictory, the relative weight of direct testimony and circumstantial evidence is determined by the jury.
4. A requested charge, containing instructions some of which are applicable and some inapplicable to the issues of the case, is properly refused.
5. 6. The court properly refused requests to charge not adjusted to the issues of the case.
7. An inadvertent statement, or mere slip of the judge's tongue, not prejudicial to the complaining party, does not require the grant of a new trial.
8. While it is better practice to use plain English rather than classical language in charging the jury, and while Latin phrases when employed should be explained, where a charge, though containing an untranslated Latin phrase, plainly informs the jury of the issues they are to pass upon and explains the law applicable thereto in parlance used and understood by them, it will not be held to be error.
9. None of the grounds of the motion for new trial show error.
DECIDED MAY 3, 1956 — REHEARING DENIED JUNE 26, 1956.
Jesse M. Sellers sued the City of Summerville in the Chattooga Superior Court to recover certain attorney's fees he alleged the city was due him. The city filed a demurrer and answer. On exceptions to the trial judge's rulings as to the sufficiency of the pleadings, the case has been before this court on two former occasions. Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); Sellers v. City of Summerville, 91 Ga. App. 105 ( 85 S.E.2d 56). A rather detailed history of the litigation is necessary in order that the exceptions taken and the rulings made on the present appeal may be clearly understood.
On June 13, 1924, the Georgia Railway Power Company, the name of which corporation has been changed to the Georgia Power Company, was granted a franchise by the City of Summerville, by the provisions of which the Power Company was granted permission to gratuitously use the municipality's streets in the erection, installation and maintenance of utility poles and other equipment necessary in the distribution of electric energy. In the year 1946 the city was desirous of deriving revenue from the power company's use of the streets. Through and in connection with Mr. Sellers' employment as an attorney for the city, several conferences were held with a representative of the power company. The object of the negotiations was to induce the power company to surrender the franchise and accept another under which the city would receive remuneration. The power company asserted its right and wish to continue to operate under the existing franchise, and refused to agree to accept a new one in its stead or to have its terms modified so as to be more advantageous to the city.
The city employed Mr. Sellers to test the validity of the franchise by appropriate action against the power company, and agreed to pay for his services a named fee contingent upon the plaintiff's obtaining an adjudication by the court or an agreement of the power company that the franchise of June 13, 1924, was not to be binding upon the city. In undertaking to carry out his contract of employment, Mr. Sellers brought several suits on behalf of the city against the power company, attacking the validity of the franchise. City of Summerville v. Georgia Power Co., 204 Ga. 276 ( 49 S.E.2d 661); 205 Ga. 83 ( 52 S.E.2d 288); 205 Ga. 843 ( 55 S.E.2d 540); 78 Ga. App. 666 ( 51 S.E.2d 702). These suits were prosecuted to unsuccessful conclusions, and the city notified Mr. Sellers that his employment was terminated.
Thereafter, on December 15, 1949, the City of Summerville and the Georgia Power Company entered into a contract which provided: "Whereas, the Georgia Power Company has and holds a franchise or franchises from the City of Summerville to distribute electric energy for sale in the said city on, over and under the streets and public places of said city, particularly a certain franchise granted by ordinance on the 13th day of June, 1924, by the Mayor and Council of the City of Summerville to the Georgia Railway Power Co., its successors, lessees and assigns, as will be shown by reference to said ordinance and
"Whereas, the City of Summerville has under its charter the right, notwithstanding the ordinance granting said franchise, to erect a municipal plant for the sale and distribution of electric energy, and furthermore has the right to grant franchises for the sale and distribution of electric energy, and furthermore has the right to grant franchises for the sale and distribution of electric energy to other persons or corporations,
"Now therefore, the Georgia Power Company agrees, and binds itself and its successors, and assigns, that so long as the said City of Summerville shall not engage in the distribution of electric energy, nor permit any other person, firm or corporation to engage in the sale and distribution of electric energy within the corporate limits of said city, the Georgia Power Company will pay to the City of Summerville on the 1st day of March each year, beginning with the year 1950, a sum equal to 3% of the gross receipts from sales of electric energy for domestic and for commercial purposes (but not for industrial purposes) delivered to customers within the corporate limits of the City of Summerville during the preceding calendar year. But any taxes, excises, licenses, occupation or income taxes levied or assessed by the City of Summerville against the Georgia Power Company, except ad valorem tax on property and license tax on the sale of electric appliances made within such calendar year, shall be considered as payments on or credit against such 3% payment.
"But if the aggregate of any taxes, excises and licenses (except ad valorem tax and license tax for the sale of appliances) levied or assessed by the City of Summerville against Georgia Power Company, its successors, lessees or assigns, in any calendar year shall exceed the amount of the payment due or to become due under the preceding paragraph of this contract, then Georgia Power Company, its successors, lessees or assigns, shall have the option and right to terminate this contract, such termination to be effective upon service of written notice on the City of Summerville, and failure to exercise this option upon the accrual of the right shall not be a waiver to the exercise of the right thereafter.
"It is not the intention of this contract to in any manner limit or restrict the City of Summerville in the establishment of a municipal electric distribution system, or in the grant of franchises to other persons or corporations, but in the event that the City of Summerville does do either of these things this contract shall thereupon terminate, and the payments of the 3% of gross receipts herein provided for, to be paid by the Georgia Power Company, its successors, lessees and assigns, shall abate, cease and be no longer due, and forever thereafter be uncollectible."
It is the contention of Sellers that, while the suits were decided adversely to the city, the power company had in the course of the litigation been forced to admit that the franchise was not permanent as it had previously maintained; that while the Power Company prevailed in each of the suits the result of the litigation was to make it necessary or expedient for the power company to enter into the new contract agreeing to pay the city for the use of its streets, and that it was through his efforts that the new contract and its benefits were procured by the city. Finally, it was his position that what he had succeeded in accomplishing constituted such performance of his contract of employment as to entitle him to recover the fees sued for. The Supreme Court, in affirming the judgment dismissing the suit brought by Sellers against the city, held: "An attorney at law cannot recover the whole or any part of a contingent fee based upon an express contract of employment, where the contingencies provided for by the contract have not been brought about, although the entire service of the attorney has been performed. The happening of the contingency is a condition precedent to the right of the attorney to recover for his services, and the precise event which was contemplated in the contract of employment must occur." Sellers v. City of Summerville, 208 Ga. 361 ( 67 S.E.2d 137). On July 25, 1952, subsequent to dismissal of the suit on the contract and affirmance thereof by the Supreme Court, Mr. Sellers instituted the present action against the city.
The petition set out the case in two counts. Both counts set forth that the plaintiff's performance of the contract of employment, the same contract upon which he originally sued, was inexact and incomplete in the sense that he had not obtained the exact result contemplated by the contract. The first count was on quantum merit and alleged that although the precise purpose of the contract was not accomplished, the city entered into the contract of October 15, 1949, with the power company and thus accepted a result different from that stipulated in plaintiff's contract of employment; that the contract between the city and the power company was procured through Mr. Sellers' services and that he was entitled to recover the value of his services. The count contained an averment that the plaintiff's services were of named value. The second count based the plaintiff's right of recovery on the doctrine of unjust enrichment and alleged, in addition to the averments contained in the first count, that the city had derived considerable revenue from its contract with the power company; that the contract was of alleged value to the city, and that the city was in good conscience obligated to pay the plaintiff a reasonable amount for his services in procuring the contract. The amount sued for, which was the same as that prayed for in count one, was likewise alleged in count two.
This court, on the first appearance of the case here, Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99), held that each count set forth a cause of action. On its second appearance in this court, Sellers v. City of Summerville, 91 Ga. App. 105 ( 85 S.E.2d 56), it was held that the answer which denied that the plaintiff's efforts were a procuring cause in obtaining the contract of December 15, 1949, between the city and the power company set up a good defense. The case was again tried, resulted in a verdict for the plaintiff, and is here on exceptions taken to a judgment overruling the city's motion for a new trial.
In the discussion of this case we shall find it convenient to refer to the plaintiff in error as "the city" or "the defendant" and to the defendant in error as "the plaintiff" or "Mr. Sellers."
1. The only general ground of the motion for new trial relied upon by the defendant is that the verdict is without evidence to support it. The elements of evidence necessary to show a right of recovery under each of the counts of the petition, while in some aspects similar, are essentially different. To support the first count it was necessary that the plaintiff's proof show that the services rendered by him, though they did not constitute an exact and complete performance of his contract of employment, were a procuring cause of the contract entered into between the city and the power company on December 15, 1949, and the reasonable value of such services. It was not necessary that it be proved that the power company contract was beneficial. Upchurch v. Maynard, 39 Ga. App. 332 ( 147 S.E. 139). To prove the second count of the petition it was also necessary that the plaintiff establish the value to the city of the power company contract. Proof of the value of the benefit accruing to the defendant was some evidence of the compensation to which the plaintiff was entitled. A detailed discussion of the evidence in the case would unnecessarily incumber the opinion. It was, while in part circumstantial, sufficient to support the allegations of both counts of the petition.
2. Special grounds 1, 8, 13 and 20 deal with exceptions taken in various forms to charges of the court, refusal of requested charges, and exclusion of evidence which it is contended was necessary for the jury's consideration of a defense set up in the answer. The defense referred to was that all that the plaintiff did was done under and in compliance with his contract of employment by the terms of which he was employed to obtain by legal proceedings or agreement with the power company the city's release from the franchise granted June 13, 1924. The holding of this court in reviewing the trial court's ruling as to the sufficiency of the petition expressly recognized that what the plaintiff, Sellers, did was done in compliance with his contract of employment and constituted an inexact and incomplete performance of the contract, and held that the petition nevertheless set forth a cause of action. The decision on the second appearance of the case simply held that the answer presented issuable defenses in that it set up that a portion of the services was rendered by the plaintiff more than four years before the suit was instituted, and for the further reason that it denied that the plaintiff's services constituted a procuring cause of the contract between the defendant city and the power company. Sellers v. City of Summerville, 91 Ga. App. 105 ( 85 S.E.2d 56). While the answer did allege that the plaintiff was not entitled to recover because what he did was in pursuance of his contract of employment, there is no intimation in the opinion of this court that rendition of services by the plaintiff in pursuance of his contract of employment was a defense to the plaintiff's suit. Indeed, if this court had so held at that time it would have been in conflict with what it first held in Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99). It follows that the question raised by the grounds of the motion referred to has been adjudicated adversely to the defendant city.
3. Special ground 2 of the motion for new trial assigns error upon the refusal of the trial judge to give the following requested instruction in charge of the jury: "I charge you further that Mr. Sellers only seeks to prove that the contract between the City of Summerville and the Georgia Power Company was procured and offered to said city by the power company as the result of his efforts and services by circumstantial evidence, and there is no direct evidence to that effect. In this connection, I charge you that if you find there is direct evidence that Mr. Sellers' services and efforts had nothing to do therewith, and that the Georgia Power Company would have offered Summerville this contract notwithstanding the litigation or threat of litigation, then the plaintiff would not be entitled to recover in any amount."
The rule upon which the ground is predicated is: "A fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist." Neill v. Hill, 32 Ga. App. 381 (2b) ( 123 S.E. 30), followed specifically in Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 (1) ( 168 S.E. 112).
The circumstantial evidence adduced by the plaintiff was in conflict with and not consistent with the direct evidence submitted by the defendant. The request did not correctly state the rule of evidence to which it referred. The ground does not show error.
4. Special grounds 3, 4 and 5 except to the refusal of requests to charge. The requests contained two propositions of law, one applicable, the other inapplicable to the issues of the case. The requests were in bank, and since a part of the instructions requested could not properly have been charged, the trial judge was right in refusing the requests. Clay v. Smith, 108 Ga. 189 (1) ( 33 S.E. 963); Mangham v. Cobb, 160 Ga. 182, 187 ( 127 S.E. 408).
5. Special ground 6 complains of the trial judge's refusal to charge as requested by the defendant: "I charge you that if the City of Summerville could not have by legal action forced the Georgia Power Company to have entered into the contract with it dated December 15, 1949, and the only way the city could have acquired that contract was through the uncontrolled discretion of the Georgia Power Company, then the plaintiff Sellers could not recover on count two of his petition." The charge requested was not adjusted to the issues of the case. There was no contention that the power company could have been compelled to enter into the contract. The issue was whether the plaintiff's service was instrumental in creating a situation in which the power company found the contract desirable in securing to itself continuous enjoyment of the benefits accruing from the franchise originally granted by the city.
6. Special ground 7 of the amended motion is controlled by the disposition made of ground 6.
7. Special ground 9 excepts to the charge: "He says that this contract was one that the city can continue for a period of 50 years, and that the contract is well worth $120,000 to the City of Summerville." There is no allusion in the pleadings or evidence to "50 years." But the charge complained of, a mere slip of the judge's tongue, was, in view of its context and the thoroughness of the whole charge on issues of the case, harmless. The petition alleged that the value of the city contract with the power company was $120,000. Proof was offered to support the allegation and that the plaintiff's efforts substantially contributed to the city's obtaining the contract. The verdict was for only $3,137.45, so while the length of time that the contract might continue of force was a factor that could have been considered in determining the value of the contract, we think that the judge's reference to fifty years was an inadvertent statement or slip of the tongue not prejudicial to the defendant.
8. The 10th special ground of the motion excepts to a charge of the court in which the term "quantum meruit" is employed, because the meaning of the words was not explained. Ordinarily, the significance to be attached to technical words when used in a charge should be explained so that the jury might comprehend the full import of the instructions given them. Holmes v. Clisby, 121 Ga. 241 (7) ( 48 S.E. 934, 104 Am. St. R. 103); Weldon v. State, 21 Ga. App. 330 (1e) ( 94 S.E. 326); Flemington c. R. Co. v. Southern c. Co., 21 Ga. App. 470 (1a) ( 94 S.E. 644). The omission of the definition of the words "quantum meruit" was amply supplied by the court's general charge to the jury. The charge read as a whole fairly and clearly explained the issues of the case in detail so that the jury were thoroughly informed of the exact issues they were to try and well instructed as to the law applicable to the issues. If it was error for the judge to have omitted explanation of the words "quantum meruit," the defendant had no reason to complain. A failure to explain the term would have tended to exclude from the jury's consideration one of the theories upon which the plaintiff relied for recovery but could not have affected the validity of any defense interposed by the defendant. The writer observes that the use of Latin words is not generally desirable in charges because some of the jurors do not read Latin; and while Latin or other foreign phrases can be explained, it seems simpler to merely charge the jury in plain English words that need no explanation.
9. Special ground 12 of the motion assigns error upon the trial judge's failure, when charging the jury upon the credibility of witnesses, to instruct them that they should consider the intelligence of the witnesses. The ground does not indicate, nor does the record disclose, that the omission was hurtful to the defendant. All the witnesses appeared to have the same general intelligence.
10. Special ground 13, in addition to an exception presented by it and disposed of in the first division of this opinion, complains that the court erred in charging the jury as follows: "I give you in charge Code § 3-107 of the Code of Georgia: `Ordinarily when one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.'" The ground also insists that the charge was error because the petition did not allege that the contract between the city and the power company was procured by the plaintiff's services. This question, raised by this ground, was adjudicated adversely to the defendant on the initial appearance of this case in this court.
11. Special ground 14 complains that the court charged the jury as follows: "I charge you that where due to incomplete or inexact performance the plaintiff is precluded from recovering the contract price, but it is in equity and good conscience entitled to compensation, general assumption may lie. In some cases where the express contract has not been performed according to its terms, but the performance of the plaintiff, Mr. Sellers in this case, in so far as it went, was of benefit to the defendant, the law will allow a recovery in general assumpsit to compensate plaintiff for the partial or inexact performance. Similarly, plaintiff may recover upon the common counts, if that which has been done by him is beneficial to the defendant, and has been accepted and enjoyed, or if his default has been waived. A benefit of that sort, if it is not a perfect compliance with what is stipulated for, cannot be accepted and utilized without making reasonable compensation. Because something of value has been received and retained by one party to the contract, the law will not leave the other, who has contributed the valuable thing wholly without remedy on account of imperfect discharge of his duty. It will deny him a remedy on a contract whose terms he has failed to observe, but will give him as much compensation as is fairly merited by his performance as far as it went, to be measured by the reasonable value of the benefit accruing from it."
The charge complained of, except for its allusion to Mr. Sellers, was in the precise language employed in the opinion of this court on a previous appearance of the case. While the language of appellate court opinions is not always appropriate for jury instructions, the language excepted to in the instant case was applicable to the issues thereof, a sound pronouncement of law, not argumentative and appropriate for the charge in which it was contained. The charge is especially criticized as an expression of opinion on the part of the court that Mr. Sellers had rendered services beneficial to the city. We think the portion of the charge excepted to, even singled out and segregated from its context, could not be construed as an expression of opinion either that Mr. Sellers had rendered services or that his services were of value to the city. But certain it is that when read in the light of the entire charge on the subject to which it related, the language referred to was not an expression of opinion as to any fact. The judge had clearly, expressly and thoroughly explained to the jury that unless the services of Mr. Sellers were a procuring cause in obtaining the contract entered into by the city with the Georgia Power Company he would not be entitled to recover. The only benefit contended that the city gained through Mr. Sellers' services was the revenue derived from the contract with the power company.
Special ground 14 also excepts to the charge because the expression, "Similarly, plaintiff may recover upon the common counts if that which has been done by him is beneficial to the defendant; and has been accepted and enjoyed, or if his default has been waived," was not adjusted to the pleadings and evidence since the petition did not allege or the plaintiff's evidence show a waiver by the defendant city of any of its rights. The petition did allege and there was evidence that the defendant waived the plaintiff's default, in failing to obtain the specific result contemplated by the contract of employment, by accepting another and different result procured through his services rendered in the inexact or incomplete performance of his contract. The charge was in accord with this court's ruling in Sellers v. City of Summerville, 88 Ga. App. 109, 116 ( 76 S.E.2d 99), and was indeed in the very language of that opinion. We recognize the rule that language employed in appellate court opinions is frequently inappropriate for jury charges. Jones v. Royster Guano Co., 6 Ga. App. 506 (3a) ( 65 S.E. 361); Lewis v. State, 65 Ga. App. 214 ( 15 S.E.2d 624). But the language excepted to here was adapted to the issues and a very clear pronouncement of the very principle concerning which the trial judge was instructing the jury. It thus was a proper charge.
12. Special grounds 16 and 17 present questions already settled by former appearances of the case in this court.
13. The 18th special ground excepts to the following charge: "The plaintiff cannot recover for any work or service claimed to have been done by him more than four years prior to the filing of the petition in this case, which was July 25, 1952, unless you find that such work, as estimated, if such work was done by the plaintiff was a continuous and continuing service." The charge was correct. An open account for continuous service of an attorney, for which he is entitled to be paid only after a particular result is procured and accepted by his employer, is not barred until four years after such result is accepted. Neal v. Stapleton, 203 Ga. 236 (3) ( 46 S.E.2d 130); Brooks v. Sims, 54 Ga. App. 71 (2b) ( 187 S.E. 254).
14. Special ground 19 of the motion for new trial complains of the charge: "If you find from the evidence in this case, gentlemen, that the plaintiff in this case rendered the services alleged in his petition, or other services; that these services were valuable to the City of Summerville, and that as a result of the services the city procured from the Georgia Power Company the contract, which, I believe, both sides admit was executed, that is, that the city was to receive three percent of the gross amount received by the power company for all power distributed in the City of Summerville, for residential and domestic purposes, and as I say, if you find that that contract was brought about as a result of the services of Mr. Sellers, or his services contributed to bringing about that contract, or substantially contributed to it, and if you find that the plaintiff has not been paid, I charge you that he would be entitled to reasonable compensation, whatever those services were worth." The defendant contends that the court erred in that the charge complained of allowed the plaintiff to recover for services other than those alleged in the petition. The evidence adduced upon the trial does not disclose that the plaintiff rendered any services other than those alleged in the petition. Hence the jury could not have found for the plaintiff on the basis of services other than those for which he sued. The charge was inaccurate but harmless.
15. The 20th special ground attacks the charge as a whole on the ground that it stressed the plaintiff's contentions and minimized those of the defendant and failed to fairly present the defense contained in the answer. The charge was full and fair, and not subject to this criticism or others made against it.
16. Special grounds 21 and 22 except to the admission of certain evidence over the defendant's objection in one instance that the evidence offered was speculative, and in another that it was not responsive. The objections were themselves insufficient to invoke any ruling by the trial judge and cannot be considered as a basis of exceptions to the ruling made.
17. The 23rd special ground complains of the admission of the opinion of a non-expert witness as to the value to the city of its contract with the power company and value of the plaintiff's service in procuring the contract. The witness gave facts upon which he based his opinion. The evidence was admissible. Code § 38-1708.
18. Ground 24 assigns error on the admission of evidence which it characterizes as argumentative. The testimony was not of that nature and the ground shows no error.
19. Ground 24 excepts to the exclusion of evidence offered by the defendant. The evidence consisted of conclusions and matters not relevant to the issues of the case.
20. Ground 25 assigns error on admission of an incomplete sentence, which, so far as the ground discloses, was wholly unintelligible and meaningless. The sentence appears not to have been completed because the witness was interrupted by the objection interposed by counsel for the defendant. It is impossible to determine whether if completed the sentence would have been admissible, and since as it stood it meant nothing its admission was obviously harmless.
21. Grounds 26, 27 and 28 except to the exclusion of evidence so clearly inadmissible under the elementary principles of the law of evidence as to require no discussion.
22. There is a motion to assess damages against the defendant, the plaintiff in error here, because the appeal of the case was frivolous. Many of the points present interesting and intricate questions. The case is a close one. The motion is without merit and must be denied.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.