Opinion
40291.
DECIDED JANUARY 24, 1964.
Foreclosure of lien. Laurens Superior Court. Before Judge Crockett from Dublin City Court.
Nelson Nelson, Carl K. Nelson, Jr., for plaintiff in error.
Jones Douglas, Paul J. Jones, Jr., contra.
1. Where the only contested issues are as to the liability of the defendant and the amount of damages inflicted, and a verdict in favor of the defendant is returned by the jury, a charge of the court calculated to affect the finding of the jury on the question of the amount of damages only, and not calculated to affect their finding upon the question of the defendant's liability or nonliability, will not require a new trial whether erroneous or not.
2. Special ground 4 is incomplete.
3. (None of the special grounds considered in this case and in these headnotes which assert error on the failure of the trial court to charge written requests, assign error on the failure of the court to give the request in the exact language of the request.)
(a) Where error is assigned on the refusal of a trial court to charge a request submitted in writing and there is no assignment of error complaining that the request was not given in the exact language of the written request, the appellate court will only consider whether the request was sound as a matter of law, adjusted to the issues and evidence, and not substantially covered by the charge given by the court.
(b) The trial judge having failed to cover the principle of law requested by the writing and it having presented a correct statement of law adjusted to the issues and evidence, the trial court erred in refusing to give it in its instruction to the jury.
4. The written requests to charge which the trial court refused to give to the jury and which refusal is assigned as error in special grounds 6 and 7 were supported by count 2 of the petition and by the evidence. The matter not having been covered by the general charge, the trial judge erred in failing to charge these requests.
5. Although the portions of the instructions of the trial court assigned as error in special grounds 9 and 10 were erroneous, the instructions were favorable to the complaining party and were harmless as to him.
6. The court having charged the principle of law set forth in the written request quoted in ground 12, the court did not err in refusing to give it. Ground 13 has no merit.
7. The assignments of error pertaining to the general grounds have no merit.
DECIDED JANUARY 24, 1964.
The plaintiff heating company filed suit to foreclose an alleged lien for $5,455.88 on real property owned by the defendants. The claim is based on plaintiff's having furnished and installed heating equipment in a building owned by the defendants and used as a chicken hatchery. Defendants denied any liability for the heating system, alleging that their tenant, the now insolvent Chemell Hatchery, had contracted with plaintiff for the heating system without their knowledge, consent, or subsequent ratification, and that the defendants had expressly informed the plaintiff prior to installation that they would not pay for the expensive heating system that Chemell wanted.
The jury returned a verdict for the defendants. Plaintiff then filed a motion for new trial on the general grounds and 13 special grounds, all of which relate to what the judge charged, failed to charge without request, and refused to charge on written request. This appeal has been brought on plaintiff's exception to the court's action in denying all grounds in the motion.
1. Special grounds 1, 2, 3, 5 and 11 complain that the trial judge erred in charging the jury to find that the plaintiff was either entitled to recover the full amount of $5,455.88 or nothing at all. This question is governed by the general rule that where the only contested issues were the liability of the defendant and the amount of damages inflicted by it, and a verdict in favor of the defendant was returned, the charge of the court calculated to affect the finding of the jury on the question of the amount of damages only, and not calculated to affect their finding upon the question of the defendant's liability or nonliability, will not require a new trial whether erroneous or not. Conant v. Jones, 120 Ga. 568, 574 (12) ( 48 S.E. 234); McBride v. Ga. R. Elec. Co., 125 Ga. 515, 517 (1) ( 54 S.E. 674); Phillips v. Ga. R. Power Co., 27 Ga. App. 21 ( 107 S.E. 357); Thompson v. Powell, 60 Ga. App. 796, 806 ( 5 S.E.2d 260); Carstarphen v. Central of Ga. R. Co., 8 Ga. App. 162 ( 68 S.E. 848); Cohen Bros. v. Krumbein, 28 Ga. App. 788, 789 (3) ( 113 S.E. 58); Daughtry v. Ga. Power Co., 61 Ga. App. 505, 513 (9) ( 6 S.E.2d 454). As applied to count 1 of the petition which alleges an express contract, the trial court did not err in overruling special grounds 1, 2, 3, 5, and 11 of plaintiff's amended motion for new trial.
2. Special ground 4 is incomplete.
3. Special ground 8 asserts as error the refusal of the trial court, after written request, to charge certain principles related to implied contracts. There was no assignment of error complaining that the request was not given in the exact language of the request. Therefore, it is only incumbent on this court to determine whether the request was sound as a matter of law, adjusted to the issues and evidence, and not substantially covered by the charge given by the court. Griffith v. Newman, 217 Ga. 533, 540 ( 123 S.E.2d 723); Dillard v. Jackson's c. Concrete Co., 105 Ga. App. 607 ( 125 S.E.2d 656); State Farm c. Ins. Co. v. Rogers, 105 Ga. App. 778 ( 125 S.E.2d 893); Butler v. Reville, 107 Ga. App. 345, 347 ( 130 S.E.2d 161). The charge as requested was as follows: "Ordinarily, where one renders in behalf of another valuable services which are accepted by the latter, the law raises in favor of the former an implied promise to pay for the same, although no formal or express contract to pay has been made." This is a correct statement of law and is derived in part from the substance of Code § 3-107, which codified the rule in Hudson v. Hudson, 90 Ga. 581 (1) ( 16 S.E. 349). This is a fundamental principle in determining liability under an implied contract, the issue raised in count 2 of plaintiff's petition. We do not find that the principle was sufficiently covered by the trial judge's charge. Therefore, the trial judge erred in failing to give to the jury this requested instruction.
4. The requests to charge shown in special grounds 6 and 7 which the trial court refused to give, while largely repetitious of the requested charge in ground 8, contain additional matter on the nature of a measure of damages which is relevant in quantum meruit as raised by count 2 of the petition. There is evidence in the record, presented without objection by the witness Leathers, which would have authorized the jury to have found for the plaintiff in some amount in quantum meruit or quantum valebat or a combination of both. The judge without request should have charged on these principles, which was not done in this case.
5. The plaintiff contends in special grounds 9 and 10 that the court erred in giving the following charge: "Now there is a general rule of law that if a person receives some thing whether he has contracted for it or not and retains it, he may be liable. You will have to consider that. If there is some thing received that can be returned, some thing that's moveable, for instance a wagon, that you have there, either pay for it or return it. If it's delivered to your premises without your contracting for it, and desiring it and wanting it, take it back or pay for it. But you can consider this, that there are instances in which improvements may be incorporated in the property to the point where it can not be returned and you may consider that. I will not say whether this is or is not true, but certainly the labor can not be returned. Whether the equipment can be returned, you will make, you may consider." We agree with plaintiff that the charge is unsound as an abstract principle of law, since the court by this language imposed on the defendant the unqualified duty to return or "take back" unordered and unwanted chattels or to pay for them. This error is compounded by the failure of the court to offer a proper explanation of the effect of chattels attached to another's realty without the owner's knowledge, authority or consent, and which because of this attaching could not be returned. Lawson v. O'Kelley, 81 Ga. App. 883, 886 ( 60 S.E.2d 380). See Farrell v. Atlanta Gas-Light Co., 61 Ga. App. 18 ( 5 S.E.2d 607). However, these errors are favorable to the complaining party and since the errors in the charge were favorable to the complaining party, the errors as to him are harmless. Ealy v. Tolbert, 210 Ga. 96 (3) ( 78 S.E.2d 26); Whitton v. Central of Ga. R. Co., 89 Ga. App. 304, 307 (3) ( 79 S.E.2d 331); Payne v. Norris, 88 Ga. App. 850, 853 (2) ( 78 S.E.2d 351); McCall v. State, 87 Ga. App. 185 (4) ( 73 S.E.2d 245).
6. Ground 12 complains of the failure of the court to charge, without request, that "the title of the true owner of land cannot be subjected to a lien for improvement, unless it is shown that he expressly or impliedly consented to the contract under which the improvements were made." Jones v. E. I. Rooks Son, 78 Ga. App. 790, 794 ( 52 S.E.2d 580). Whether a failure to give this request could have been harmful to the plaintiff or not we do not consider for the record shows that the court charged this principle in almost this exact language, and that the slight differences in wording are immaterial. There is no merit in this special ground.
Ground 13 alleges that the judge erred in charging the jury that the defendants could not be bound by their lessee. Plaintiff complains that the charge nowhere explains that an owner can be liable if he impliedly consented to the contract under which improvements were made. This criticism is not well taken as the court amply covered the substance of the complaint. Special ground 13 has no merit.
7. There is no merit in the general grounds of the motion for new trial. As applied to count 1 of the petition, the evidence demanded a verdict for the defendant. As adjusted to count 2, the evidence while conflicting was sufficient to support the jury's verdict for the defendant.
Judgment affirmed as to count 1 of the petition; reversed as to count 2 for reasons stated in Divisions 3 and 4 of this opinion. Hall and Pannell, JJ., concur.