Opinion
41910.
SUBMITTED APRIL 4, 1966.
DECIDED APRIL 29, 1966.
Action on account. Clayton Civil and Criminal Court. Before Judge Foster.
Rich, Bass Kidd, Casper Rich, for appellant.
John L. Respess, Jr., for appellee.
1. Where, in a suit on account, it appears from the plaintiff's testimony that there was a novation of the contract implicit in an open account when the parties entered into another contract, under which a verdict for the plaintiff was not demanded, the first grant of a new trial was not error.
2. Failure of a court reporter to certify the correctness of a transcript when filing it with the clerk of the trial court is an amendable defect, and either party may move to have the deficiency supplied or to have corrected any errors that may appear. Failure so to move amounts to a waiver.
SUBMITTED APRIL 4, 1966 — DECIDED APRIL 29, 1966.
Wallace D. Harper brought suit against J. L. Green on open account seeking to recover $983.12 for automobile parts and labor used in making repairs to a 1955 Ford Thunderbird, attaching an itemized statement of the account. Defendant answered, denying all allegations of the petition save those which were jurisdictional and an allegation that demand had been made for payment and refused, which he admitted.
Upon trial plaintiff testified that he was engaged in the repairing of automobile bodies and making general mechanical repairs, that he had done this kind of work for Green over a period of about seven years, that Green was in the business of buying and selling used cars, and that he brought the car in question from a point up East to his body shop seeking to have it restored to good condition for resale. He purchased parts and did the work, and testified that the itemized statement attached to the suit correctly represented the cost of the parts and labor, except one item of $60, which defendant did not owe and which had mistakenly been included.
The defendant sought to prove certain payments on the account, but that evidence was excluded because he had not, in his answer or separately, filed any plea of payment.
In the course of his testimony plaintiff asserted that when Green brought the car in for repairs it was in bad condition and he did not want to "fool with it" and the defendant, not wanting to pay what it would take to make the repairs, proposed "you fix it up and when you get done with it we'll take it and sell it and we will chop it," and that this "meant that we would split it half in two, and he would take half and I would take half — so, I said `O.K.,'" and he then proceeded to make the repairs.
Plaintiff finished the job of repair and renovation and the defendant took the car, ostensibly for selling it. But he never thereafter reported back to Mr. Harper as to any sale or accounted for any proceeds therefrom. Harper made numerous inquiries, and in answer Green always told him that he had the car down in the country, but would bring it in "tomorrow." He asked Green, "Why don't you bring it up and let's sell it, and get our money out of it and take the loss," and again Green promised to do so "tomorrow," but tomorrow never came.
A verdict for the amount claimed was directed, and defendant moved for a new trial on the general grounds, which was granted, and plaintiff appeals, asserting that the grant of a new trial was error because the evidence demanded a verdict for the plaintiff.
1. The evidence did not demand a verdict for the plaintiff in view of the contract between the parties that plaintiff would do the repairs and defendant would then sell the car and divide the proceeds equally between them. Plaintiff, urging the defendant to bring the car in and sell it for that purpose, recognized that a loss might result to both. Consequently, under that contract his entitlement might have been less than the amount of the account sued on.
Although it appears that the car was either not sold and was kept hidden out by the defendant, or was sold and defendant had failed to account for the proceeds, there is no evidence as to the value of the vehicle in its repaired condition or as to what it should have brought on a fair sale.
Whether a recovery on the contract would have been authorized under the pleadings here is not a question now before us. We do no more than to hold that in the light of the plaintiff's own evidence a verdict upon the open account was not demanded and the first grant of a new trial was not error. Code Ann. § 6-1608.
2. Appellant enumerates as error the failure of the reporter to certify as to the correctness of the transcript when it was filed with the clerk of the trial court. This is without merit. The defect was amendable. Appellant makes no assertion of any error or incorrectness in the transcript. Either party might have objected to the filing of the uncertified transcript and, if necessary, could have moved for a hearing to get a certified transcript filed or have errors corrected if they appeared. Code Ann. §§ 6-806, 6-807. But, by having failed to do so, he waived the objection.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.