Opinion
42578.
ARGUED FEBRUARY 6, 1967.
DECIDED FEBRUARY 14, 1967. REHEARING DENIED FEBRUARY 28, 1967.
Action for damages. Fulton Civil Court. Before Judge Williams.
Edward D. Wheeler, Grant, Spears Duckworth, William G. Grant, for appellant.
Nall, Miller, Cadenhead Dennis, A. Paul Cadenhead, Robert E. Corry, Jr., for appellees.
1. Where during the trial of a case an amendment to the petition is allowed subject to objection and demurrer and none is interposed, the subsequent verdict and judgment on the count added by amendment will not be disturbed on the grounds that the second count does not in and of itself contain a prayer for judgment or other relief, where the second count shows on its face a purpose to recover the same damages prayed for in the original petition, and where it is clear that the second count was intended to be added before the prayers of the original petition and that the prayers are intended to apply to, and are appropriate to, the second count. 2. The evidence supports the verdict.
3. Section 17 (b) of the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 31, as amended by Ga. L. 1966, pp. 493, 498; Code Ann. § 70-207 (b)) does not require that counsel be offered opportunity before the charge of the court to object to requests to charge, although the court, in its discretion, may hear objections to the requests at that time.
4. Where there was no exception to the charge prior to verdict enumerations of error which do not meet the test for consideration under § 17 (c) of the Appellate Practice Act of 1965 raise no questions for decision.
5,6. Exceptions to requests to charge, as they apply to Count 1 of the petition, raise no question for decision when there was a verdict for the defendant on that count. If the giving of the requests was error, it was harmless.
7. Enumerations of error not argued or supported in the brief are deemed to have been abandoned.
8. There was no error in a charge that if a concealed defect existed in a house that was known, or in the exercise of ordinary prudence should have been known to the seller, and which an ordinarily prudent examination by the buyer would not reveal, the seller was under a duty to reveal it and failure to do so would amount to fraud.
ARGUED FEBRUARY 6, 1967 — DECIDED FEBRUARY 14, 1967 — REHEARING DENIED FEBRUARY 28, 1967.
Mr. and Mrs. Samuel Rocker, plaintiffs below, brought suit against Windsor Forest, Inc., on the theory of fraud and deceit in the sale of realty seeking to recover $10,000 actual damages, $5,000 punitive damages, and $3,000 attorney's fees. The petition alleged in substance as follows:
That plaintiffs purchased a certain house and lot from defendant builder-seller and, less than three months after taking possession, noticed evidence of erosion and deterioration of the mortar in the exterior brickwork of the house; that they learned the defendant had used an improper ratio of sand to cement in the mortar; that the gross deficiency in the cement content of the mortar was wilfully brought about by defendant for the purpose of reducing construction costs in order to increase defendant's profits; that defendant knew that such acts and omissions would reduce the value and quality of the house and would case deterioration, erosion and cracking; that the defective condition in the brickwork was of such nature as to constitute a latent defect not reasonably discoverable, and in fact was not discovered by plaintiffs; that defendant, as the builder and seller of the house, occupied a position of superior knowledge as to the defect and was under a duty to make a full disclosure; that defendant wilfully and intentionally failed and omitted to advise plaintiffs of the hidden defect; that defendant's failure to make a disclosure of the defect and defendant's general representation that the house was sound and of good construction was fraudulent and caused plaintiff to rely thereon and presume that the house was free from serious hidden or latent defects; that the intention, purpose and object of defendant's fraudulent misrepresentations and non-disclosure was to deceive and defraud plaintiffs and to induce them to purchase the house; that plaintiffs relied upon defendant's misrepresentations and fraudulent non-disclosure and were thereby damaged in certain particulars.
During the course of the trial one of the defendant's employees was called by plaintiffs for cross examination and testified without objection that the defective condition of the mortar used in the exterior walls was caused by freezing of the mortar-mix both before and after it was mixed and put on the house.
He testified that it takes from 30 to 60 days for the mortar to set up or bond, and that if it freezes before setting there is no bond. A chemist who made tests to determine the ratio of sand and cement used in making the mortar testified that his examination of the house disclosed that there were various cracks in the walls of the house and that if one raked his fingers over the mortar joints lightly it "tended to powder out. It didn't hold together very well." A contractor who examined the house to determine what would be necessary to correct the defective mortar joints in the walls testified that he went "completely around the house" three times to determine what would be required, took a key and scraped the mortar joints in seven or eight different locations on all sides of the house, found them deteriorated with the mortar "spoiling out with the pressure of a key on it," that the brickwork was "very poor" and that the procedures necessary for making correction included a removal of the shutters, screens, doors, door trim, wooden rear porch, protection of the shrubbery and the windows, and demolition of the brick work, and "after all brick had been removed, we would put on a new fifteen-pound felt covering over the entire house and then use new brick of the same kind and brick this house up," and repaint all trim damaged in removing and replacing the brick. In his opinion "there wouldn't be any other way of correcting the mortar joint deterioration that I know of." The cost of this work would come to $9,851. Both Mr. and Mrs. Rocker testified that they tested the mortar joints "around the four sides" of the house to determine whether the flaking of the mortar joints was the same on all walls, and that they found it to be so.
Plaintiffs amended their petition by adding a second count which incorporated all of the paragraphs of the original petition except those relating to the sand-cement ratio and added allegations relating to the freezing of the mortar to conform to this evidence.
The jury returned a verdict on Count 2 in the amount of $9,851 actual damages, $3,000 punitive damages and $3,000 attorney's fees. Defendant's motion for new trial was denied, and this appeal followed.
1. It is first contended that the verdict and judgment appealed from are contrary to law and must be set aside because the amendment adding the count on which the verdict was returned does not in and of itself contain a prayer for judgment or other relief.
We find no merit in this contention. Count 2 (the paragraphs of which are numbered 33 through 36) incorporates by reference Paragraphs 1 through 7 and 17 through 32 of the 32 paragraphs of the original petition. Paragraph 2 alleges that defendant is indebted to plaintiffs in the amount of $10,000 plus $5,000 punitive damages. Paragraph 29 alleges that the value of the house free from the defects is $18,500, and Paragraph 30 alleges that the value of the house in its present condition is $8,500. Paragraph 31 alleges that plaintiffs sustained actual damages of $10,000 as a result of the fraud perpetrated upon them, and Paragraph 32 states that plaintiffs seek and are entitled to recover $5,000 punitive damages because of defendant's tortious conduct and the aggravating circumstances. This count thus shows on its face a purpose to recover the same actual and punitive damages sought in the original petition; and, if the lack of a specific prayer for these damages in the amendment adding Count 2 is a defect, it is a formal, amendable defect cured by verdict. Cf. Fitzpatrick v. Paulding, 131 Ga. 693 ( 63 S.E. 213); Wilson v. Groover, 146 Ga. 369 ( 91 S.E. 113); Auld v. Schmelz, 199 Ga. 633 (2) ( 34 S.E.2d 860); Armstrong v. Armstrong, 206 Ga. 540 (1) ( 57 S.E.2d 668); Nichols v. Nichols, 209 Ga. 811 (2) ( 76 S.E.2d 400); Wright v. Florida-Georgia Tractor Co., 218 Ga. 824 (2) ( 130 S.E.2d 736); McCollum v. Thomason, 32 Ga. App. 160 (4) ( 122 S.E. 800); Henderson v. Ellarbee, 35 Ga. App. 5 (4) ( 131 S.E. 524). This is particularly true since the amendment was ordered filed subject to objection and demurrer, and none was interposed.
Moreover, a single ad damnum clause or prayer for relief at the end of a count is sufficient for all the counts which precede it, if the language used is broad enough to include them. Gaither v. Gaither, 206 Ga. 808, 813-814 ( 58 S.E.2d 834); Henderson v. Stewart, 102 Ga. App. 533 ( 117 S.E.2d 176). While it would have been better practice for the amendment to specifically recite that the additional paragraphs were added before the prayers of the original petition, it is clear that Count 2 was intended to be so added and that the prayers are intended to apply to, and are appropriate to, this count.
2. It is next contended that there is no evidence to support a verdict in the amount returned or in any amount. The basis of this contention is that while there is evidence from which the jury could have found that the brickwork on all four walls of the house was defective as a result of one or more of three possible causes and that the cost of removing and replacing the defective brickwork would amount to $9,851, there is no evidence from which the jury could have determined just how much of the brickwork was defective due to the use of frozen mortar as alleged in Count 2 or what amount of actual damages plaintiffs suffered as a result of frozen mortar.
This point is not well taken. The measure of damages in an action for fraud and deceit is the actual loss sustained, and if the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true. Spindel v. Kirsch, 114 Ga. App. 520 ( 151 S.E.2d 787). It is the same measure applied where a builder has failed to complete the building of a house according to contract. Kendrick v. White, 75 Ga. App. 307, 310 ( 43 S.E.2d 285); McKee v. Wheelus, 85 Ga. App. 525, 528 ( 69 S.E.2d 788); Allied Enterprises, Inc. v. Brooks, 93 Ga. App. 832, 833 ( 93 S.E.2d 392); Spielberg v. McEntire, 105 Ga. App. 545 ( 125 S.E.2d 134).
This difference in value may be shown by evidence of the reasonable cost of correcting the defect. Small v. Lee Brothers, 4 Ga. App. 395, 397 ( 61 S.E. 831); Dornblatt v. Carlton, 10 Ga. App. 741 ( 73 S.E. 1085); Wilson v. Black, 114 Ga. App. 735 (3) ( 152 S.E.2d 755). There is evidence in this record that the value of the property when plaintiffs moved in, just after closing the purchase, was regarded as being $18,500, (which has increased because of improvements made on it), and that after discovery of the defective mortar, the value was no more than $8,000. There was also evidence of a contractor that the defective mortar joints existed in all of the walls and that the condition could be corrected only by a removal and replacement of all of the brickwork, at a cost of $9,851. The walls were cracking in various places and the mortar joints were "powdering out" all around the house. There was ample evidence from which the jury could conclude that the defective condition was general and present in all walls of the house. The evidence would authorize a finding that a freeze of the mortar before use, or a freeze during or even after completion of construction, but before the lapse of a sufficient time for bonding had taken place, would result in no bond and thus make bad mortar joints over all of the walls of the house. Though the bricklayer called this to the attention of the superintendent of the construction, he was instructed to proceed with the use of the mortar and laying of the brick when the weather was dipping below freezing.
Whether the amount of the damage is to be arrived at by use of the testimony as to the value the house would have had if it had been properly completed and its actual value in the condition delivered, or by the testimony as to the cost of correcting the defective mortar joints, the verdict is amply supported as to amount.
3. Enumeration of error No. 4 complains that appellant's counsel were denied an opportunity to urge objections before the giving of the charge to certain of the requests which had been submitted by counsel for appellees. It appears that at the close of the evidence and before the beginning of arguments the court informed counsel that he would give all requests that had been submitted. After the charge was given, opportunity was afforded counsel to present any objections — and some were then made.
Section 17 (b) of the Appellate Practice Act of 1965 ( Code Ann. § 70-207 (b)) provides that at the close of the evidence, or at such earlier time as the court reasonably directs, written requests to charge may be presented, with copies to opposing counsel, and "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but shall instruct the jury after the arguments are completed." There is no provision requiring that counsel be afforded opportunity to object to requests at that time — only that they be informed as to the court's intention as to whether he will give them. It may be better, as counsel insist, to keep error out of a charge than to put it in and then take it out under objections made before verdict as contemplated by Sec. 17 (a), but some latitude must be left to the trial judge as to how he will conduct the trial of his cases. He may, in his discretion, hear objections on the requests before deciding whether he will give them, or he may proceed with making his own determination without the benefit of objections or argument from counsel. We see no difference in this situation and that of an objection to evidence. "Where objections are made to the admissibility or evidence, the court must rule thereon, and there is no requirement that he must hear from counsel before doing so. Why should the court listen to argument on the admissibility of evidence when he has decided how he is going to rule? Defendant is fully protected by his right of appeal and reversal of the court, if it is in error." Sullivan v. State, 222 Ga. 691 (1) ( 152 S.E.2d 382).
But even if it were required, we do not perceive how there would be harmful error in his failing to do so if the requests themselves were not erroneous. Since we find no reversible error in any of the requests given on behalf of the appellees, it becomes obvious that this enumeration is without merit. Dill v. State, 222 Ga. 793 ( 152 S.E.2d 741).
4. It is conceded by appellant that as to the portion of the charge referred to in Enumeration of error No. 5, exceptions were not made to it before verdict, as required by § 17 (a) of the Appellate Practice Act of 1965 ( Code Ann. § 70-207 (a)), but we are asked to review error now enumerated and contended to have been in the charge under § 17 (c) ( Code Ann. § 70-207 (c)).
We have examined the whole charge and the portion now claimed to have been error. The errors alleged do not meet the test of Nathan v. Duncan, 113 Ga. App. 630 (6), 636 ( 149 S.E.2d 383); Georgia Power Co. v. Maddox, 113 Ga. App. 642 (1) ( 149 S.E.2d 393); Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98, 99 (3) ( 150 S.E.2d 271); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337 (2) ( 151 S.E.2d 493); Saint v. Ryan, 114 Ga. App. 489 (2) ( 151 S.E.2d 826), nor do we find them so. We regard the charge as not being error under the evidence in this record, or at most, harmless error.
5. In Enumerations of error Nos. 6 and 7 it is urged that a request to charge on the matter of a wilful misrepresentation of a material fact was erroneously given because unsupported by evidence. The objection made to the trial court concerning this request was specifically limited to its application to Count 1 of the petition. Since there was no verdict against the defendant-appellant on that count of the petition the error, if any, was harmless.
6. Plaintiff submitted a request to charge that a reckless representation of facts as true, which the other party may not know to be false, if intended to deceive, is equivalent to actual knowledge of the falsity by the party so representing them. The charge was given and defendant excepted thereto, as to Count 1 of the petition, because it was unsupported by the evidence. Again, since the verdict was in the defendant's favor as to Count 1, the error, if any, was harmless.
7. Enumeration of error No. 9, not argued or supported in the brief, is deemed abandoned.
8. The court charged that if there was a concealed defect in the house which the defendant seller knew about or should have known about in the exercise of ordinary prudence, and which an ordinarily prudent examination by the plaintiff buyer would not have revealed, the seller was bound to reveal it and failure to do so would constitute fraud. As an abstract proposition this charge was correct. Davis v. Hopkins, 50 Ga. App. 654 ( 179 S.E. 213); Southern v. Floyd, 89 Ga. App. 602 ( 80 S.E.2d 490). It is a fundamental tenet of the Anglo-American law of fraud that it may be committed by a suppressio veri as well as by suggestio falsi. The complaint here is that the contract of sale was made prior to the construction of the house and at that time no concealed defect could have existed. The contract was not completed, however, until the seller constructed and delivered the house, and if there was a known concealed defect at that time it should have been revealed. We see no error in the charge.
Judgment affirmed. Felton, C. J., and Hall, J., concur.