Holmes v. Sibley , 68 Ga. App. 133 ( 1942 )

1, 2, 4. Where, under the evidence and charge of the court, a verdict was demanded either for the amount sued for by the plaintiff or for an amount claimed to have been overpaid by defendant on the account sued on, it was not error to charge the jury that one of the two verdicts should be rendered, and it was not error not to authorize a general verdict in favor of the defendant.

3. If the charge on voluntary overpayment by the defendant was error in the respect urged by the plaintiff in error, it was favorable to him rather than harmful, and was not cause for a new trial.

DECIDED OCTOBER 9, 1942. J. F. Sibley, trading as Sibley Electric Company, filed a declaration based on a purchase-money attachment against C. A. Holmes previously issued and levied, wherein he alleged that the defendant was indebted to him in the sum of $472 on open account; for one electric motor, $650, six sacks of cement, $5.10, three electric transformers and equipment, $650, changing original power extension to new location, $22; total $1327.10; less credits of $855.10, leaving a balance of $472. The defendant denied the allegations of the declaration. He amended his answer by alleging that the plaintiff agreed to install the necessary equipment to start defendant's gin running under electric power for the sum of $650 plus $5.10 for the cement, $655.10 to be the total cost to the defendant, and that defendant had paid plaintiff $855.10; that defendant had also agreed to pay plaintiff $50 for rewiring the location of the power unit; that he had overpaid the sum of $150 and prayed judgment therefor.

The plaintiff testified in substance: that he sold Holmes an electric motor for $650, and Mr. Holmes was to pay for six sacks of cement; that it was not a new motor, which would have cost around $1200, but they agreed on a price of $650, and the motor was delivered; that witness was to install the motor, and Holmes pointed out where he wanted it placed; that Holmes selected a new location after the motor was placed, and that was where the charge for extra wiring came in; that the work was completed on May 9; that he did not sell Holmes any more electrical equipment at that time, but two months later Holmes came to see him about a transformer; that they agreed on a price of $650 cash for the transformer; that he told Holmes he had to have the money for it because he had to buy it; that when the truck delivered the transformer Holmes sent him only $500, and said he would take care of the other shortly; that the payment of $500 was on the transformer, and it was sold on the faith of his promise to pay for it; that when he finished installing it Holmes told him he would pay the other $150 when he got some cotton ginned; that $650 was what he agreed to pay for the motor, and Holmes understood that the transformer would be another $650; that Holmes paid $855.10 in all and owes a balance of $472; that when he first talked to Holmes about the motor he told him he could give him a "turnkey" job for $650, but that was for the motor only; that it was over sixty days before Holmes asked about a transformer.

C. A. Holmes testified, in brief: that Sibley wanted to sell him an electric motor; that Sibley told him he would furnish everything and get the gin running; that after some conversation they agreed on a price of $650; that he asked Sibley about the transformer and was informed that he would not need one; that Sibley told him he already had the wiring and all that was necessary was to put up another pole and step the current down; that after the motor was installed it was moved by Sibley, who told him he would charge $50 for moving it; that Sibley informed him the gin was ready, but that the power company would not turn on the current because there was no transformer; that Sibley told him to go to the Public Service Commission to force the power company to furnish a transformer; that Sibley told him to go see a Mr. Swint, who forced the power company to furnish him a transformer; that Sibley found a transformer; and when it was delivered he sent $500, which was more than he owed but he was in a hurry to get his gin started; that he was to pay only $650 for the whole job plus the cement; that he did not agree with Sibley to install the motor for $650 but to get the gin running for that amount; that Sibley was to install the transformer and everything to put it in running condition; that he thought Sibley would give him the money back which he had overpaid, and that is what he meant when he told Sibley that they would adjust the matter later; that Sibley told him on one occasion that if he was dissatisfied he would repay the money and remove the equipment; that he replied he thought he had made a good trade and wanted both of them to stand by it.

Curtis Hay, testified for the defendant: that he heard Sibley tell Holmes that he would give him a "turnkey" job, and that all Holmes would have to do would be to mash a button for $650; that Holmes asked about the transformer, and Sibley replied that that was his job and not Holmes's; and that he knows that Holmes asked Sibley several times about a transformer. Sibley testified that he knew Curtis Hay, and that he was not present when he and Holmes entered into the contract. Holmes testified that he knew Hay, and that he was present when the contract was made. 1. The following charge was excepted to: "If you believe, gentlemen of the jury, that the plaintiff has established his case, as is alleged, by a preponderance of the evidence, it would be your duty to find a verdict for the plaintiff against the defendant. If, on the other hand, you do not believe that the plaintiff has made out his case by a preponderance of the evidence, then he would not be entitled to recover against the defendant, and it would be your duty to look further into the claim of the defendant and determine whether or not he, the defendant, has overpaid the plaintiff the sum which he claims of $150, and whether or not, as a counterclaim, the defendant is entitled to have a judgment for that amount against the plaintiff." The grounds of alleged error are as follows: "(a) The charge tended to mislead the jury into believing that the jury either had to find a verdict in favor of the plaintiff or find a verdict in favor of the defendant on the counterclaim. (b) The charge calculated to mislead the jury into believing that they could not find a verdict for the defendant unless they found a verdict for the defendant on his counterclaim. (c) The above charge was erroneous because it limited the issues of the defense of movant in that a verdict could not be rendered on the plain basis that plaintiff failed to make out his case." The charge was not error for any reason assigned. The jury could render only one of two verdicts under the evidence and the charge of the court. The evidence showed that the defendant owed the plaintiff the amount sued for or that the plaintiff owed the defendant $150 overpayment. The court charged the jury that if they found that the defendant had overpaid the plaintiff they should find for the defendant in the amount overpaid. He authorized such a finding for the defendant without any qualification as to how the overpayment was made, whether voluntarily, under duress, by mistake, or otherwise.

2. Error is assigned on the failure of the court to charge the jury that if the plaintiff failed to make out his case by a preponderance of the evidence and the defendant failed to make out his counterclaim by a preponderance of the evidence it would be their duty to find in favor of the defendant. It was not error to fail to so charge for the reasons stated in the foregoing division of this opinion.

3. Error is assigned on the failure of the court to charge on voluntary payment, in that the testimony of movant that he was not forced to pay the overpayment of $150 by any fraud or duress on the part of the plaintiff in attachment authorized the jury to find that the payment was voluntary, and the jury could have found in favor of the defendant without finding a verdict on his counterclaim. There is no merit in this contention. If the movant is correct in saying that the charge given on overpayment was incorrect, it was beneficial rather than harmful to the movant, in that it authorized the movant to recover the overpayment under circumstances where he himself contends he would not be entitled to it.

4. The last exception is a repetition of others already discussed, and is without merit. The court did not err in overruling the motion for new trial.

Judgment affirmed. Stephens, P. J., and Sutton, J., concur.