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MABRY et al. v. HENLEY.
45762.
Action on contract. DeKalb Superior Court. Before Judge Thibadeau.
QUILLIAN, Judge.
1. (a) The defendants failed to lay the proper foundation for the admission, as business records under Code Ann. 38-711, of certain exhibits.
(b) Under the circumstances of this case it was not harmful error to refuse to permit the defendants to make an offer of proof as to excluded exhibits.
(c) Any error in the exclusion of testimony regarding the exhibits, or the exclusion of the exhibits themselves, was harmless error where other evidence of similar import was admitted.
2-7. The remaining enumerations of error are not meritorious.
Clyde W. Henley filed his suit in DeKalb Superior Court against Blaine Mabry and B & M Enterprises, Inc. The complaint contained allegations that: the plaintiff entered into a contract with defendants whereby they agreed to construct his residence in consideration of ten percent of the building costs, excluding the cost of the land, in accordance with plans and specifications which were made a part of the contract; the defendants undertook to perform the contract, but the house was not completed or ready for occupancy.
The complaint alleged that the defendants breached the contractual terms as follows: by the failure to perform the contract in a prompt and diligent manner, so as not to cause unnecessary hindrance or delay; by the failure to perform the work in a workmanlike and skilful manner. It was further alleged: that the plaintiff was to pay the cost of labor and materials, and the defendants to furnish the necessary tools for the performance of the contract; that in this respect, the defendants included in their charges, other than for labor and materials, costs of tools and other equipment; that the plaintiff had paid to the defendants the sum of $22,500, and that the defendants were demanding of the plaintiff the additional sum of $9,653.96, which included $2,923.48 as the contractor's building fee; that the defendants had only furnished to the plaintiff invoices for labor and materials in the sum of $16,725.84; that among these invoices were included nonchargeable items, duplications, and excessive items; and that the de fend-ants refused to furnish the plaintiff a copy of the invoices or other proof of additional cost for labor and material, or in any way substantiate their claim of building cost, including labor and materials; that because of the defendants' breach of their contract and their failure to substantiate in any reasonable manner their claims of cost, the plaintiff is unable to close his permanent loan commitment, that this is costing him an unnecessary interest charge, and that he has no adequate remedy at law unless a court of equity intervenes and appoints an auditor, to determine and fix the proper cost; that because of the defendants' breaches of the contract, they had forfeited their building fee. The complaint prayed for the appointment of an auditor, a restraining order to restrain the defendants from placing any lien upon said property, pending the further order of the court, for a finding that the defendants had forfeited their right to a building fee, for a rule nisi, and such other and further relief as might be necessary.
The defendants filed their answer admitting the execution of the contract, their undertaking to perform it, but denying any breach of the contract. By way of a counterclaim, the defendants set up modifications of the written contract and acts of the plaintiff which hindered and harmed the defendants in the performance of the contract and resulted in extra cost and extra work, labor and materials. The counterclaim sought the recovery of the additional sum of $11,282.33.
On the hearing of the rule nisi, the trial judge struck the equitable features from the complaint, directing that it proceed as an action at law, denied the prayers for the appointment of an auditor and dissolved the temporary injunction. Thereafter, the plaintiff amended the complaint to set forth additional breaches of the contract by the defendants through defective workmanship and set out the cost to the plaintiff to correct these defects.
The case came on for trial before a jury which returned a verdict for the defendants on the counterclaim in the amount of $4,000. Judgment was duly entered upon that verdict. The defendants filed a motion for new trial and later amended the motion by adding 30 special grounds. The motion for new trial as amended was overruled and appeal was taken to this court.
1. Enumerations of error 3-24 are so related as to be considered together. They involve the exclusion of 15 exhibits consisting of checks, invoices and adding machine tape. Grounds 3, 4 and 20 complain of the trial judge's ruling excluding the 15 exhibits in toto. Grounds 5-19 complain of the exclusion of each individual exhibit. Ground 21 and part of Ground 22 assign error on the refusal to allow counsel for the defendants to make an offer of proof as to the exhibits. The remaining part of Ground 22 and Grounds 23 and 24 complain of the exclusion of the defendant Mabry's oral testimony with regard to information contained in the exhibits.
The issues herein involved arose out of the following circumstances. The defendants sought to introduce a series of exhibits which contained invoices from suppliers and subcontractors, checks in payment to the suppliers and adding machine tapes which the defendants used in connection with these transactions. Counsel for the plaintiff objected to 15 of these exhibits but did not set forth a ground for such objection. Nevertheless, the trial judge excluded them and stated for his reason that the amounts shown on the checks and the total of the invoices did not correspond.
(a) "It is the rule in this State that, whether the objections urged to the admission of evidence be valid or invalid, a judgment excluding it will be affirmed if it was inadmissible for any reason. Edmonds v. State, 201 Ga. 108, 131 (39 SE2d 24). See Harrison v. Regents of the Univ. System, 105 Ga. App. 817 (1 b) (125 SE2d 793); Heaton v. Hayes, 188 Ga. 632 (4 SE2d 570). Under authority of Martin v. Baldwin, 215 Ga. 293 (4) (110 SE2d 344): "A record or writing is not admissible under Code Ann. 38711 without the testimony of a witness whose evidence shows that the writing or record offered is a memorandum or record of an act, transaction, occurrence, or event made in the regular course of the business, and that it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter." See Walburn v. Taunton, 107 Ga. App. 411 (2) (130 SE2d 279); Home Finance Co. v. Smith, 116 Ga. App. 76 (1) (156 SE2d 522). As to the exhibits in question, the defendants failed to meet these requirements and the evidence was therefore inadmissible. Even though the trial judge's reason for excluding the evidence might be erroneous, we are compelled by the above authority to hold that such ruling must be affirmed.
(b) Enumerations of error 21 and 22 complain that the court erred in not permitting the appellants to make an offer of proof as to the excluded exhibits.
It is, of course, a well settled rule that in order to preserve a ground with regard to the exclusion of oral evidence, it is necessary that the complaining party show what he expects to prove and that such evidence was material, relevant and beneficial to him. Berger v. Plantation Pipeline Co., 121 Ga. App. 362 (3) (173 SE2d 741); Griffin v. Henderson, 117 Ga. 382, 384 (43 SE 712). There is also a general rule that "where offer of proof is necessary, it is error for the trial court to refuse an opportunity to counsel to state what he proposes to prove by the evidence offered." See 88 CJS 179, Trial, 73, and cases cited. The Georgia courts have recognized the necessity of allowing an offer of proof. See Weathers Bros. Transfer Co. v. Jarrell, 72 Ga. App. 317, 345 (33 SE2d 805); Griffin v. Henderson, 117 Ga. 382, 384, supra; Holland v. Williams, 126 Ga. 617, 618 (55 SE 1023). The Supreme Court stated in the Holland case: "Where a question propounded to a witness is objected to and rejected, counsel should be allowed to place on record what evidence it is expected the question will elicit, in order that his exception may be perfected."
In Douglas v. American Cas. Co., 106 Ga. App. 744, 745 (128 SE2d 364), this court, considering the exclusion of documentary evidence, held: "Where the errors complained of relate to and require a consideration of evidence, it must be brought up in the bill of exceptions or attached to it as exhibits properly identified by the trial judge or embodied in an approved brief of evidence and brought up as a part of the record." See also Athens Mfg. Co. v. Malcolm, 134 Ga. 600 (2) (68 SE 329); Blount v. Faulk, 222 Ga. 589, 590 (151 SE2d 135).
We note that the exhibits are part of the record and there had been testimony concerning such exhibits as well as statements by counsel as to their import. Moreover, since they were inadmissible because the proper foundation for their admission had not been laid, the failure to allow counsel for the defendants to show what he expected to prove by the exhibits was not harmful error.
(c) Subsequently, counsel for the defendants now attempted to elicit the substantive information as to costs and expenses by the oral testimony of the defendant Mabry using certain parts of the exhibits, previously ruled inadmissible, to refresh and assist his memory. Rulings in this regard are the subject of enumerations of error 22, 23 and 24.
Enumeration of error 22 concerns the trial judge's ruling made basically at the beginning of extended colloquy, between the judge and counsel, interspersed with some testimony, wherein the judge stated: "this witness is obviously reading from the exhibit and reading the contents of the exhibit that has been excluded by the court, and the court will make this statement to you at this time, and you may govern yourselves accordingly. You are subject to contempt proceedings now. The court has ruled on the exhibit and will hear nothing else about these exhibits, and the court will not allow this witness to read from these exhibits."
Enumeration of error 23 complains that when counsel asked the judge if the witness could refresh his recollection the following ruling was made: "He may refresh his recollection, but the court will not let him add up from the exhibit the total amount whereby he has got to read from this exhibit to know. He may refresh his recollection. Now you may govern yourselves accordingly, and if he steps overbounds one more time, that's it."
The colloquy was concluded when the trial judge ruled: "If the court's memory serves it correctly, sometime last week, 01- this week, the attorney for the defendant in this case went over each of the documents that there was an objection placed to, and at that time had ample opportunity to examine the witness on each of these items. Therefore, this court will rule out any further questions regarding these particular exhibits. You may proceed along other lines." This was the basis of enumeration of error 24.
" 'A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally shall speak from his recollection thus refreshed, or shall be willing to swear positively from the paper.' Code 38-1707. This definitely allows oral testimony by a witness which the witness, absent the memorandum, would not be able otherwise to recollect." Woodward v. City Council of Augusta, 117 Ga. App. 857 (1) (162 SE2d 304). See Veal v. Wood, 29 Ga. App. 94 (113 SE2d 818); Steinmetz v. Chambley, 90 Ga. App. 519, 524 (83 SE2d 318); Lewis v. State, 113 Ga. App. 714 (2) (149 SE2d 596); Akins v. Ga. R. & Bkg. Co., 111 Ga. 815 (3) (35 SE 671). "Testimony of a witness as to the facts from which books of account are made up is admissible as primary evidence." Haskins v. Carson, 115 Ga. App. 336 (1) (154 SE2d 626).
Here the evidence sought to be given was not objectionable. Even if the documents themselves were inadmissible as business records for lack of the proper foundation having been laid under Code Ann. 38-711 (Ga. L. 1952, p. 177), the defendant could refresh his memory by the use of their contents in order to give his own testimony, as primary evidence. See Woodward v. City Council of Augusta, 117 Ga. App. 857 (1), supra; State Hwy. Dept. v. Godfrey, 118 Ga. App. 560 (164 SE2d 340).
Nevertheless, subsequently the trial judge admitted into evidence the defendant's Exhibit 67, which was identified as the defendants' "job book record" consisting of entries of day-to-day costs and which included records of the job in question. Comparison of the items contained in the "job book record" with the payments contained in the exhibits reveals them to be virtually identical. Upon careful examination, the existence of a minor discrepancy is found to be in the defendants' favor since the "job book record" apparently has $5.86 in costs more than the exhibits show. Hence, any error in the exclusion of testimony regarding the exhibits, or the exclusion of the exhibits themselves, was harmless error where other evidence of similar import was admitted. Oxford v. Horsley, 44 Ga. App. 821 (2) (163 SE 284); Louisville & N. R. Co. v. McCamy, 72 Ga. App. 769 (2) (35 SE2d 206); Kirkman v. Ashford, 145 Ga. 452, 457 (89 SE 411).
2. Enumerations of error 27 and 28 assert that the trial judge erred in failing to grant the defendants' motion for directed verdict and in allowing the plaintiff's petition as amended to go to the jury. The defendants contend that the plaintiff failed to show a proper measure of damages in a case of this nature.
There was evidence which would sustain the alternative measures of damages above set out.
It should be further noted that in this case the contract was based on "cost plus 10%" and that the plaintiff raised factual issues as to the correctness and necessity of several charges claimed by the defendants as part of their costs. See in this connection Talerica v. Grove Park Plumbing Service, 103 Ga. App. 591 (120 SE2d 36). It is, therefore, apparent that the trial judge did not err in refusing to grant the motion for directed verdict.
3. Enumeration of error 2 sets out that it was error for the trial judge to exclude the defendants' Exhibit D-9 Which was a recapitulation of the costs incurred by the defendants in building the plaintiff's house.
No reference is found in either the enumeration of errors or the appellant's brief as to where the ruling complained of may be found in the record. In fact, the only reference to the record is to the location of the excluded exhibit itself. Thus, for failure to comply with Rule 17 (c 3) of this court, this ground is deemed abandoned. Burchfield v. Byers, 121 Ga. App. 152 (2) (173 SE2d 230).
4. (a) Enumerations of error 31, 32 and 33 complain of the admission of certain evidence. Where "substantially the same evidence objected to was later elicited without objection on direct and cross examination, the error in overruling the objection, if any, was harmless." Multiple Realty v. Walker, 119 Ga. App. 393 (1) (167 SE2d 380). See Chatham Amusement Co. v. Perry, 216 Ga. 445 (10) (117 SE2d 320); Cloer v. Life & Cas. Ins. Co., 222 Ga. 798, 801 (152 SE2d 857).
(b) Enumeration of error 25 sets out that the trial judge erred in failing to allow the defendant to write certain figures on a blackboard.
This ground which was merely reiterated in appellant's brief and unsupported by citation of authority is deemed abandoned. Elam v. Atlantic C. L. R. Co., 115 Ga. App. 656 (6 a) (155 SE2d 644); Smith v. Biggers, 115 Ga. App. 661 (2) (155 SE2d 719); Edge v. State, 117 Ga. App. 628 (161 SE2d 420); Harrell v. Bedgood, 121 Ga. App. 16 (2) (172 SE2d 485).
5. The only issue raised by enumeration of error 30 is that the charge gave the wrong measure of damages with regard to recoupment. The charge was taken from Allied Enterprises v. Brooks, 93 Ga. App. 832, supra, and was not error for the reasons assigned.
6. Enumeration of error 29 complains of an action taken by the trial judge to which no objection was interposed. This ground is without error.
7. Enumeration of error 26 asserts that it was error not to allow Mrs. Blaine Mabry to testify. At the time she was offered as a witness, the trial judge stated: "Just a moment. I'll have to ask you to remove yourself back to the jury room. (The jury retires from the courtroom). Now at the beginning of the case the court asked the question of Mrs. Mabry going to be a witness, and the court was informed Mrs. Mabry would not, in fact, be a witness, and she was allowed to stay in the courtroom." Since the plaintiff had invoked the rule of sequestration of the witnesses, the trial judge, therefore, held that the witness would not be allowed to testify.
Counsel for the defendants now contends that there was nothing in the record to show that any statement was made with regard to whether Mrs. Mabry would or would not be a witness. However, at the time the witness was called and the trial judge made the above quoted statement, counsel for the defendants acquiesced by answering: "Well, at that time, Your Honor, I had not intended to call her."
There is no merit in this enumeration of error.
Judgment affirmed. Bell, C. J., and Whitman, J., concur.
E. T. Hendon, Jr., for appellee.
Martin McFarland, for appellants.
ARGUED NOVEMBER 9, 1970--DECIDED APRIL 2, 1971.
Friday May 22 16:01 EDT


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