Opinion
37469.
DECIDED MARCH 17, 1959.
Quantum valebat. Fulton Civil Court. Before Judge Parker. September 29, 1958.
Carpenter, Karp Mathews, Edwin W. Ross, Joe Browne, for plaintiff in error.
J. D. Tindall, Jr., James K. Rankin, contra.
1. When the general grounds of a motion for new trial are not argued orally or in the brief of counsel for the movant and are not generally insisted upon, such grounds will be treated as abandoned in this court. Allen v. Barrow, 93 Ga. App. 894 ( 93 S.E.2d 177).
2. The presiding judge properly refrains from instructing the jury in reference to a principle of law not applicable to the pleadings and proof.
3. A charge should not submit an issue not made by the pleadings or evidence.
DECIDED MARCH 17, 1959.
T. E. Johnson, Jr., trading as Graphic Arts Service Company, sued Higgins-McArthur Company in the Civil Court of Fulton County. The petition alleged "defendant is indebted to the plaintiff on an account in the sum of $6,036.45, which account will more fully appear by reference to the bill of particulars hereto annexed, marked exhibit `A', and made a part hereof." Exhibit "A" reads: "Your order No. 8603; Our order, 8181; Date entered, 5-16-57; Sold to Higgins-McArthur Co., 302 Hayden Street, N.W., Atlanta, Georgia
Quantity ordered Description price 49 Miehle plates 2 41 Miehle remake plates Halftones, additional negatives, positives, stripping, overprints, silverprints, overtime corrections 5,860.64 Ga. sales tax 175.81 -------- 6,036.45
Emory University College Annual"
By way of amendment the plaintiff added an exhibit "B" reading: "Your order No. 8603; Our order, 8181; Date entered, 5-13-57; Sold to Higgins-McArthur Co., 302 Hayden St. N.W., Atlanta, Ga., Emory University College Annual.
Quantity ordered Description price 49 41 Miehle plates 28.00 1,372.00 19 Overprints 5.00 95.00 2 41 Miehle remake plates 18.00 36.00 Additional halftones, screens, stripping and positives 52.21 48 Pages silverprints 1.25 60.00 60 Hours overtime 7.00 per hr. 420.00 Camera corrections and dental section 75.00 126 Hours overtime on camera 7.00 per hr. 882.00 208 Halftone negatives, size 8 x 10, 4.90 ea. 364.00 117 Halftone negatives, size 10 x 12, 5.45 ea. 269.10 6 Halftone negatives, size 12 x 18, 9.20 ea. 36.30 2 Halftone negatives, size 16 x 20, 13.80 ea. 19.30 36 4 x 5 line negatives 1.55 ea. 55.80 10 8 x 10 line negatives 1.80 ea. 18.00 1 10 x 12 line negative 2.00 ea. 2.00 410 Halftone negatives 3.15 ea. 1291.50 40 Hours overtime platemaking 7.00 per hr. 280.00 10% markup for gathering copy with negatives, phone calls, opaqueing, time lost in students checking layouts 531.63 -------- 5,860.64 Ga. sales tax 175.81 -------- 6,036.45 The price of these halftones are figured on the difference of the regular price of that size, and the price of small halftone which is $3.15 each."
The evidence adduced upon the trial material to the issues made by the record showed: the plaintiff and defendant entered into a contract by the terms of which the defendant was to make and furnish the plaintiff with certain lithographic plates from photographic films furnished by the latter to be used in printing a college annual. The evidence submitted by the opposite parties was in conflict as to the price to be paid for the plates, but was in harmony that a purchase price was agreed upon. The evidence further shows without dispute that additional plates were ordered by the defendant from the plaintiff, the price of which was not agreed upon and that two of the plates, through no fault of the plaintiff, had to be made over in order to serve the purpose for which they were designed. The evidence also showed that the cost of production of the plates was materially increased on account of the failure of the defendant to furnish the plaintiff films and information in the condition and under the circumstances contemplated by the contract. It was agreed by the contracting parties that the additional labor and expenses incurred by the plaintiff in making the plates was to be paid by the defendant. No amount to cover the additional costs of the plates was agreed upon.
The plaintiff's evidence very clearly showed that the cost of producing the plates included the material, the labor and expenses incident to their manufacture. The plaintiff testified in response to questions by counsel for the defendant as follows: "Q. Then, it was after he complained you couldn't possibly have charged any six thousand odd dollars, that wasn't the agreement, and wanted to know how you got that way, and then it was after you got up the detailed invoice that's attached to your amendment, isn't it? A. It could be this was typed out after Mr. McKenzie was in our plant, yes, sir. Q. I'm going to show you D-1 and isn't this the first invoice you ever showed Mr. McKenzie when you invited him in your place of business, and isn't it dated May 16, 1957, and it's got no breakdown on it at all? A. I wouldn't know about that. I wouldn't say that it was or wasn't. Q. You had him over there for the purpose of discussing the total amount of this bill and getting your money, didn't you? The job had just been completed a few days before; isn't that right? A. Yes, sir, that's right. Q. That's the reason you had Mr. McKenzie come to your office, wasn't it, to talk about the bill; isn't that true? A. It could be. This is a breakdown of this price here. This is the same price. I mean, there's no difference in the price. He wanted a breakdown as well as I remember of each — in other words, itemized statement which we very, very seldom ever give to a customer. In other words, we bill as a whole for each job that goes through our plant. This is strictly against trade practices even to itemize a bill like that."
Other evidence introduced by the plaintiff was to the effect that there were no services separate from that of making and furnishing the plates purchased. His foreman who was actually in charge of the work testified: "Q. Why was it you didn't give Higgins-McArthur company a detailed statement? A. We're members of P. I. A. which they state that part of the ethics of this business, especially in the trade business, you do not give itemized statements. You give a blanket charge on the entire job. They frown on the practice of breaking down a bill. Q. Even where you have never quoted any hours of overtime or any amounts? A. Absolutely. Q. Or any time sheets or anything? A. Absolutely."
The jury returned a verdict for the plaintiff, but in a lesser amount than that sued for. The plaintiff filed a motion for new trial on the general grounds and later added 2 special grounds. The motion was denied and the plaintiff excepts.
On the appearance of the case in this court, the plaintiff impliedly abandoned the general grounds of the motion for new trial.
1. Headnote 1 requires no elaboration.
2. Black's Law Dictionary defines the words, "quantum meruit" as: "The common count in an action of assumpsit for work and labor, founded on an implied assumpsit or promise on the part of the defendant to pay the plaintiff as much as he reasonably deserved to have for his labor."
The same work also defines the words, "quantum valebat" as: "The common count in an action of assumpsit for goods sold and delivered, founded on an implied assumpsit or promise, on the part of the defendant, to pay the plaintiff as much as the goods were reasonably worth."
Code § 3-107 provides: "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 first ground of the motion for new trial complains that that portion of the Code section relative to the rendition of valuable service by one party and accepted by another was not given in charge to the jury. Since the suit was not for the value of services accepted by the defendant, the described charge was not applicable to the issues made by the pleadings and proof. York v. Stonecypher, 181 Ga. 435, 437 ( 182 S.E. 605), and citations.
3. The second ground of the motion for new trial complains that the court charged: "One of the contentions of the case is the plaintiff is entitled to the reasonable value of the services rendered to the defendant in this matter. If you find that there was no special agreement to pay that was binding on both parties, then you would look to the evidence and determine from the evidence what the reasonable value of the services rendered by the plaintiff to the defendant was, and if there was no special agreement, no special promise to pay, then the plaintiff would be entitled to recover the reasonable value of the material that he delivered to the defendant." The excerpt from the charge is assigned as error because incorrect as an abstract principle of law and because it did not permit the plaintiff to recover on quantum meruit for services rendered by the plaintiff to the defendant and was for this reason confusing.
While not a model of clarity, the charge was not erroneous for the reasons assigned. The suit was based not upon the principle of quantum meruit but upon quantum valebat. In short, it was based on the right of the plaintiff to recover for the plates themselves, a finished product, and not for the services that went into the production of the plates as a separate and distinct item of liability.
Neither of the special grounds shows reversible error, and the trial court did not err in denying the motion for new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.