Opinion
37641.
DECIDED JULY 9, 1959.
Action on account. DeKalb Superior Court. Before Judge Guess. January 30, 1959.
McCurdy, Candler Harris, J. Robin Harris, for plaintiff in error.
Augustine Sams, Grigsby H. Wotton, contra.
1. Viewed as a whole, the trial court's charge to the jury was full, fair, and lucid, and was not erroneous for any reason assigned in the motion for new trial.
2. The evidence was in conflict on all material issues, and the jury having resolved these conflicts in favor of the plaintiff, this court is without power to overturn the verdict.
DECIDED JULY 9, 1959.
On November 13, 1956, the plaintiff, F. C. Liepman Contracting Company, brought an action against Emory L. Jenks, Sr., a resident of DeKalb County, in which it is alleged that the defendant is indebted to the plaintiff in the sum of $8,757.25 plus interest in the amount of $408.64, and future interest at the rate of 7 percent per annum, on open account for grading and bulldozing done by the plaintiff on the defendant's property at his request, as illustrated by an account attached to the petition showing amount due, totaling $15,639.25, amounts paid, totaling $6,882, and that the account sued on covered a period from February 18, 1955, to February 15, 1956.
The defendant, in his answer, admitted his residency in DeKalb County, but denied the other allegations of the petition; and, as finally amended, the defendant, for further answer, alleged that the plaintiff does not own and never has owned the property on which the plaintiff alleges he performed the work for which suit is brought. The property on which the work was done was at all times shown in the plaintiff's petition as owned by Wawona Forest, a partnership, composed of Emory L. Jenks, Jr., Harry O. Jenks, and James Miller, or Emory Jenks, Jr., or Mrs. Uvah H. Jenks, and in all the defendant's transactions with the plaintiff, he was acting solely as agent for the said partnership and named individuals and not in his own behalf. The defendant's agency was well known to the plaintiff and at all times the defendant's principals were disclosed to the plaintiff. On or about May 6, 1955, the plaintiff, acting by and through his duly authorized agent, W. A. Bennett, entered into a contract with Emory Jenks, Jr., acting on behalf of the partnership known as Wawona Forest, to perform certain work in grading and bulldozing various streets in Wawona Forest Subdivision, a copy of which agreement is attached to and made a part of this pleading; and, subsequently to May 6, 1955, this contract was ratified by the plaintiff, in that the work called for was substantially completed. In addition to the work to be performed under the contract, it was agreed between the parties that where any work was done by the plaintiff outside the contract then the work tickets would be signed by Emory Jenks, Jr., Harry Jenks, James Miller, or the defendant, and that only tickets signed by them would be paid. All bills submitted for work done prior to the execution of the contract referred to were paid in full, and on May 7, 1955, the contract price of $2,000 was paid in full. All bills submitted after the execution of the contract which were accompanied by work tickets signed by any of the persons set forth above have been paid in full.
On the trial of the case the jury returned a verdict for the plaintiff for $7,000. The defendant's motion for new trial, based solely on the general and two special grounds, was denied, and he assigns error here on that ruling.
1. In special ground 1 the defendant assigns error on the following excerpt from the court's charge to the jury: "I charge you that if one engages another to do work, even if it is to be done on the land of another, the party engaging the work, if you find it has been done or performed, is, in law, liable for the agreed consideration or compensation to the one engaged to do the work." In this ground the defendant avers that the excerpt from the charge is erroneous as an abstract principle of law and excluded from the jury's consideration a valid defense set up by the defendant whereby he set up and offered to prove that he was at all times acting as agent for a disclosed principal and was, therefore, not personally liable for any of the alleged indebtedness to the plaintiff.
In the special ground 2 error is assigned on the trial court's failure to instruct the jury as follows: "I charge you that an agent who, acting within the scope of his authority, enters into contractual relations for a principal whom he discloses, does not bind himself, in the absence of an express agreement to do so. I further charge you that where an agent contracts in his own name, but his principal is known, the question as to whether the principal or the agent individually is bound is one of fact for you to determine from the evidence presented."
The trial court, in the case, presented first the issues raised by the plaintiff's pleadings and then those raised by the defendant's pleadings. The charge in this case, viewed as a whole, fully, fairly, and lucidly stated the principles of law applicable to the issues involved. A charge is not erroneous or harmful because the trial court does not in one breath or paragraph cover every issue in the case. The court must necessarily proceed individually with the issues and law involved in a case and cover them seriatim. This, we think, the trial court did in the present case. See Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535 ( 45 S.E. 430); City of Griffin v. S.E. Textile Co., 79 Ga. App. 420 ( 53 S.E.2d 921), and citations.
"A contract may be supported by adequate consideration as against a promisor under it who never receives any part of the consideration. This is horn-book law — the most elementary." Ashburn v. Watson, 8 Ga. App. 566, 569 ( 70 S.E. 19). The excerpt from the charge of which complaint is made in special ground 1 is not erroneous as an abstract principle of law, and this being so, our investigation of this ground must end there. Anderson v. Southern Ry. Co., 107 Ga. 500 (4) ( 33 S.E. 644).
If the defendant had wished a charge on the point covered by the proposed charge in special ground 2, he should have requested it. See Central of Ga. Ry. Co. v. McKinney, supra.
The trial court did not err in its charge to the jury for any reason assigned in the motion for new trial.
2. Even the most cursory examination of the evidence indicates that the jury was authorized to find either for the plaintiff or the defendant, and it having resolved that question in favor of the plaintiff, this court is without power to overturn the jury's decision on the issue. The suit was on open account, and the account was introduced in evidence without objection, and the evidence authorized the verdict.
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs specially.
As I interpret the court's charge it did not contain the principle of undisclosed and disclosed principal, but I cannot tell from ground 2 whether the evidence required the charge or not.