Opinion
17532.
SUBMITTED JULY 9, 1951.
DECIDED SEPTEMBER 12, 1951.
Equitable petition. Before Judge Renfroe. Evans Superior Court. April 26, 1951.
R. K. Girardeau and C. L. Cowart, for plaintiff.
C. O. Purcell, S. T. Brewton, and J. T. Grice, for defendant.
1. The allegations of the answer in the nature of a cross-petition were, as against demurrer, sufficient to set forth a cause of action.
2. Under the facts of the present case, it cannot be held as a matter of law that the trial court erred in refusing to approve the brief of evidence that was proffered by the petitioner.
3. An objection to evidence on the sole ground that it is irrelevant is not such an objection as would be reversible error to overrule.
4. There is no merit in the contention that the charge of the court allowed the jury to render a verdict for the defendant based partly on the claim for damages for breach of the partnership contract as set forth in count one, and partly on the implied contract for services as set forth in count two.
5. Nor is there any merit in the contention that the court expressed an opinion in its charge as to what had been proven.
6. The court did not err in failing to charge that the presumption to pay the reasonable value of services rendered on a quantum meruit basis does not usually arise in cases between near relatives.
7. The evidence, though conflicting, was sufficient to support the verdict for the defendant.
No. 17532. SUBMITTED JULY 9, 1951 — DECIDED SEPTEMBER 12, 1951.
C. E. Sykes filed in Evans Superior Court, against J. B. Collins Jr., a petition which as amended alleged substantially the following: The petitioner was the owner of a tract of land known as the Foye Farms, and the defendant was a share cropper thereon from 1941 through 1949. During the intervening years the defendant, who had control and management of the farm, including the selling of crops and livestock, became largely indebted to the petitioner by reason of not having accounted to him for his share of the proceeds of the sales. The petitioner prayed among other things: that process issue; that the defendant be enjoined from disposing of the property; that an accounting be had, and petitioner recover a judgment for $11,718.07; that the petitioner be declared to be the owner of the crops and livestock; and that the same be sold and the defendant be credited with his portion of the proceeds thereof, and that the money arising from such sale be paid to petitioner; that a hearing be had and, if it should appear that it would be for the best interest of the parties, that a receiver be appointed; and for general relief.
The defendant filed an answer in the nature of a cross-petition, count one of which as amended alleged: The petitioner first rented the farm to the defendant for the year 1941 on a share-crop basis, but a few months thereafter the parties by mutual consent entered into a partnership, under the terms of which the petitioner was to furnish his lands, provide and keep up the fences and buildings thereon, and furnish all necessary fertilizer and seeds. The defendant was to do all work in raising crops, look after the petitioner's timber, and do all things necessary to put the farm on a paying basis. Each partner was to own a one-half interest in the partnership property, and to share equally in the profits and losses. In pursuance of the agreement, the defendant took possession of the land, which was practically an abandoned farm, and spent $2000 of his own funds in buying livestock. Through the defendant's efforts and personal funds, the farm now has approximately 350 acres in productive row crops, 250 acres in pastures, 25 acres in wild life, 8 fish ponds covering about 90 acres, and 16 water holes for livestock and wild life. With the improvements the value of the farm was increased, all of which was for the joint benefit of the parties. The defendant entered into the partnership contract in good faith, giving his entire attention to the business for nine years and putting back into the business all of his profits except enough for him and his family to live on. This was done with the expectation that with the year 1950 and thereafter the respective partners would reap a substantial income from their enterprise. However, the petitioner capriciously terminated his partnership agreement. The defendant does not claim the land, but he has an interest in the partnership property which has a total value of approximately $14,000. While the defendant kept a set of books, the account has been a continuing one since January 1, 1941, and no settlement has ever been had. The breach of the partnership agreement by the petitioner has injured the defendant $30,000. In the early part of 1949, the petitioner asked the defendant for his books, and he has recently learned that either the petitioner or someone else has made many alterations of the books for the purpose of making them show that the defendant was indebted to the petitioner in a large sum. A purported audit of the books is not correct, because many items therein showing liability of the petitioner to the defendant have been omitted. The books, correctly kept by the defendant, show that at the close of 1948 the petitioner was indebted to the defendant in the sum of $683.47. In addition to the items of partnership property taken over by the receiver, there is still in the possession of the petitioner stated partnership property, which he refuses to surrender. The prayers, among others, in count one of the cross-petition were: that the defendant recover a judgment for $30,000; that a receiver be appointed, and an accounting had; and that the petitioner be enjoined from disposing of or encumbering any of the property.
Count two of the cross-petition as amended alleged: The defendant worked on the farm of the petitioner for the years 1941 through 1948, and up to September, 1949, and while so engaged the petitioner and the defendant had mutual accounts against each other and never had any complete settlement. The defendant did the following work for the petitioner individually, of the value hereinafter set out: labor in building and repairing fences and houses, $3000; overseeing the production and selling of raw gum and pulpwood, $10,400; constructing 8 fish ponds, covering 80 acres, $8000; clearing new land, plowing, harrowing, and planting it into permanent pastures, $3000. All of such work, done by the defendant in actual labor and in supervising and directing others, was at the direction and by request of the petitioner and for his benefit, and the defendant has never collected anything for his services for these items. The prayer in count two of the cross-petition was that the defendant have judgment in the sum of $24,400 for his services to the petitioner.
The petitioner filed a special demurrer to the original answer and cross-petition of the defendant, which was renewed to the answer and cross-petition as amended. The trial court overruled the demurrer, to which judgment the petitioner filed pendente lite exceptions.
The evidence introduced on the trial of the case was in sharp conflict, the petitioner and the defendant offering many witnesses whose testimony tended to support the allegations of their respective pleadings. Documentary evidence included: The auditor's report; books kept by the defendant for the years 1941 through 1949 with all entries therein; deposit slips, checks, notes, etc., pertaining to farm operations for the above period; maps and photographs of pastures.
The jury returned a verdict in favor of the defendant for $14,400. The petitioner's amended motion for a new trial was overruled, and the case comes to this court for review upon his exceptions to that judgment. In his bill of exceptions the petitioner also assigned error on the exceptions pendente lite.
1. The allegation in the cross-petition that in the audit many items showing liability of the petitioner to the defendant are left off in order to show that the defendant is indebted to the petitioner, is not subject to demurrer upon the ground that it is not shown what items are left off of the audit and the amounts thereof. The books would be the highest and best evidence. The audit was made from the books which were alleged to be in the hands of the receiver. The mere fact that the audit might differ from what was shown on the books would not control the outcome of the suit, since a recovery, if any, would be determined by the books. In the circumstances it would be unreasonable to require the defendant to point out the many alleged differences between the audit and the books. The two amendments to the cross-petition met and cured other deficiencies pointed out by the special demurrer.
2. The bill of exceptions contains the recital: "Counsel for movant presented to the court for approval a condensed and succinct brief of the evidence, which, they contended, included the substance of all the material oral testimony and documentary evidence, whereupon counsel for the defendant objected to the approval of said proffered brief of the evidence, without having examined the same, and without pointing out any defects therein, or any failure to have included therein any material portion of the evidence in said case, and insisted that the court should approve as a brief of the evidence in said case the narrative transcript of the evidence as prepared by the court reporter, including all documentary evidence in full, without eliminating all unnecessary parts and irrelevant parts, and the court after consideration of the objections and upon the insistence of counsel for the defendant refused to approve the brief of the evidence submitted by counsel for movant, without having made any examination thereof to ascertain whether or not the same was a correct brief of the evidence."
Whether a brief of evidence is a proper brief is a question to be determined primarily by the trial judge. Norred v. State, 127 Ga. 347 (1) ( 56 S.E. 464); Darden v. McCord, 204 Ga. 717 (1) ( 51 S.E.2d 666). It has also been held that "the trial judge may amend a brief of evidence so as to make it speak the truth, even after it has been agreed upon by counsel, approved by the court, and filed." Elkins v. Roberson, 103 Ga. 558 (1), ( 29 S.E. 755). The Code, § 70-305, declares in part: "In all cases in which the testimony has been stenographically reported, the same may be reduced to narrative form, or the stenographic report may be used in whole or in part in making up the brief, with immaterial questions and answers and parts thereof stricken, so as in every case to shorten the brief, and include therein only material evidence."
There is no contention that the present brief approved by the trial court is not a correct brief of the evidence. The brief proffered by the petitioner is not included in the transcript of the record or in the bill of exceptions. Under such circumstances, it can not be held as a matter of law that the trial court erred in refusing to approve the brief of evidence that was proffered by the petitioner. See, in this connection, Taintor v. Rogers, 197 Ga. 872 (1a) 873 ( 30 S.E.2d 892), where it was held: "A complete bank record of the defendant's deposits and withdrawals covering a period of seven years, which was introduced by the plaintiff to show a coincidence of deposits with entries by the defendant into his ward's safety-deposit box, and to rebut the defendant's contentions as to the amount of his annual income, was for such purpose more effective when unbriefed."
3. The first special ground of the motion for new trial complains that the court erred in permitting a witness for the defendant to testify in substance: He owned a fish pond containing about five or six acres. It was built according to government specifications and stocked with fish. He did not know whether it was an average pond. He knew nothing about the petitioner's ponds, but had seen them, and they appeared to be constructed similar to his. After his pond had been stocked for two and a half years, he obtained therefrom certain quantities of fish that were of a stated value. A pond should grow at least two hundred pounds of fish per acre, per year.
The movant objected on the ground that the testimony was irrelevant and unethical, and, since the witness testified that he knew nothing about the petitioner's ponds, any evidence as to quantity of fish produced in his pond would not be any criterion from which the amount of fish in the petitioner's ponds could be determined. There is no merit in this ground. While reasons are stated why the evidence objected to should not have been admitted, they merely amount to an objection that the evidence was irrelevant. This is not such an objection as would be reversible error to overrule. Kirkland v. Ferris, 145 Ga. 93 (4a) ( 88 S.E. 680); Hogan v. Hogan, 196 Ga. 822 (1) ( 28 S.E.2d 74); Manley v. Combs, 197 Ga. 768 (9), ( 30 S.E.2d 485); Pippin v. State, 205 Ga. 316 (6), ( 53 S.E.2d 482); Haslerig v. Watson, 205 Ga. 668 (1), ( 54 S.E.2d 413); Middleton v. Waters, 205 Ga. 847 (4), ( 55 S.E.2d 359).
4. The second, third, fourth, and seventh special grounds complain that the charge of the court allowed the jury to render a verdict for the defendant based partly on the claim for damages for breach of the partnership contract as set forth in count one, and partly on the implied contract for services as set forth in count two.
While both counts were based on the same transaction, there was no contention in the pleadings or evidence that the defendant was entitled to recover under both counts. He testified that he was claiming under the partnership contract, or on a quantum meruit basis, but that he was not claiming under both. Furthermore, when the motion for new trial was filed, the defendant made a counter-showing setting forth that he requested the trial court to submit stated questions for the jury to answer, which would have cured the complaint here made, but that the petitioner refused to join in the request, and the petitioner now complains that the trial court did not do something that he refused to ask the court to do.
In such circumstances, if the petitioner was not satisfied with the charge as given, he should have asked the court for appropriate additional instructions.
5. The fifth special ground complains that the court erred in charging the jury: "Now, gentlemen, if you find in this case that no partnership existed, then, I charge you, that Mr. Sykes should pay to Mr. Collins the value of his services beyond his duties as a share-cropper and beyond his duties in connection with the livestock, if you find that Mr. Collins has not been paid." The criticism is that the charge was violative of the provisions of Code § 81-1104, which provides that it is error for any judge in his charge to the jury to express or intimate his opinion as to what has or has not been proved.
The court had previously instructed the jury: "If . . you should find that there was no partnership between them but that the only relation that existed was that of the landlord and cropper, then, look to the evidence and see whether or not Mr. Collins rendered Mr. Sykes any of the services as set forth in what he calls as count two, . . and determine the value of those services, gentlemen, . . if you do find, under the evidence that such services were rendered. . . If you find that Mr. Sykes has paid Mr. Collins for the supervision of this work that's contended for by him, why, you would not consider that question at all and that is a contention, as the court understands it, that Mr. Sykes says he not only paid for the labor, he paid for all the material and things of that kind but he also has paid Mr. Collins for whatever services he rendered there in the way of supervising the work." After giving the charge complained of, the court instructed the jury: "You determine . . from the evidence in this case, oral and documentary as to whether or not Mr. Collins rendered these services and if so, whether or not he has been paid for the services he claims he has rendered there over and beyond his duties as related to the share crop and to the livestock."
Considered in connection with its context, the excerpt of the charge complained of was not subject to the criticism that it amounted to the expression of an opinion by the trial court.
6. The sixth special ground complains because the court, after charging the jury in the language of Code § 3-107, that "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," failed to charge the remaining provision of the Code section, "but this presumption does not usually arise in cases between very near relatives."
In the present case, the defendant was a nephew of the petitioner by marriage. The defendant testified that he made no demand for his services at the time they were rendered because under the partnership contract he expected to receive benefits in the future. There was no contention under the pleadings or evidence that the parties were dealing with each other as near relatives. In the circumstances, if the petitioner had desired the court to charge the entire Code section, an appropriate request should have been made therefor.
7. The eighth special ground is an amplification of the general grounds. The evidence, though conflicting, was sufficient to support the verdict in favor of the defendant.
Judgment affirmed. All the Justices concur.