Opinion
33741.
DECIDED MARCH 14, 1952.
Complaint on contract; from Gordon Superior Court — Judge Paschall. June 25, 1951.
Harbin M. King, Matthews, Owens Maddox, for plaintiff.
Henry L. Barnett, James B. Langford, for defendant.
None of the special grounds of the motion for a new trial is meritorious. The plaintiff in error contends that his petition is based upon an express contract, and that he was, therefore, under the pleadings and the evidence, entitled to the full amount of his contract price for which he sued. Such contention is not sustainable, where the jury found that the plaintiff did not comply with his express contract to dig the well. It follows, therefore, that the charges of the court complained of in special grounds 3 and 4 were harmless to the plaintiff in error, under his own contentions, for which he can not complain, since thereunder he received a verdict in his favor for $150, which sum he was not entitled to under his own contentions.
DECIDED MARCH 14, 1952.
Austin Abernathy, doing business as Cherokee Well Drillers, brought suit in the Superior Court of Gordon County against W. D. Putnam and his wife, Mrs. Emma D. Putnam, substantially alleging in his petition as follows: that, on or about May 1, 1950, the defendants contracted with the plaintiff for the latter to drill a well for them and to furnish the materials therefor on certain described realty owned by the defendant Mrs. Putnam in said county; that said agreement was oral, and the plaintiff agreed to drill a six-inch water well on said land of sufficient depth to produce an adequate supply of water for a modern home, casing same to the extent necessary; that the defendants agreed to pay him for so doing at the rate of $3.75 per foot of well drilled; that the plaintiff drilled a well 514 feet in depth; that all but the first 20 feet thereof is in solid slate and limestone rock; that the plaintiff cased the well for the first 20 feet and guaranteed to the defendants that no further casing would be necessary; that said well produced, and is producing 40 gallons of water an hour and fills to within 22 feet of the top; that this is an adequate water supply for a modern home; that the plaintiff did this work and furnished the material therefor, improving said realty, and completed his contract on June 7, 1950; that the plaintiff is entitled to be paid and the defendants are due to him therefor under the contract $1927.50, which is unpaid; that the plaintiff has demanded payment therefor of the defendants and they have refused same, and they are using said well, and have paid to the plaintiff nothing and neither have they offered to pay him anything for drilling said well; that within three months from the doing of said work, furnishing materials, and completion of said contract, to wit, on August 11, 1950, the plaintiff recorded his claim of lien upon said realty in said county, as required by law, a copy of the lien being attached. The plaintiff prayed for a general judgment against the defendants, with interest, and for a special judgment declaring said judgment a lien on said realty.
The defendant W. D. Putnam filed his answer, denying the material allegations of the petition. This defendant set out: that his wife, the defendant Mrs. Emma D. Putnam, on or about the date set out in the petition made a contract with the plaintiff to drill a well and furnish the materials, the same to be of sufficient depth to obtain soft water amounting to at least 400 gallons an hour, and to case the entire depth of the well with galvanized casing; that the plaintiff has failed and refused to do this; that in drilling the well the plaintiff struck a vein of water and insisted that the same was not in sufficient amount to supply the water needed and said he would have to drill deeper; that the drilling was not in solid slate and limestone, but was done through pebble rocks, gravel, and ordinary soil; that the plaintiff knew that the defendant desired 400 gallons of water an hour and he agreed to furnish the same; that in its present condition the well is not serviceable, usable, or reasonably fit for the use intended, and is without any value whatsoever, for the reason that it would cost more to continue drilling said well to a sufficient depth to procure soft water, and to furnish the casing the entire depth as the plaintiff agreed, than it would cost to drill and case a well at another location of the same depth; and said well is of no value and there has been a total failure of consideration. The defendant Mrs. Putnam filed her answer, denying the material allegations and making substantially the same allegations otherwise as contained in the answer of her husband.
The defendant Mrs. Emma D. Putnam filed her plea and alleged: that the consideration of the contract sued on was to be the drilling of a well of a sufficient depth to produce at least 400 gallons of soft water hourly, and the same was to be cased with galvanized pipe its entire depth; that the plaintiff has cased the well only some 20 to 22 feet and there is only a weak vein of lime water capable of producing only 40 gallons of water an hour and this water is unfit for ordinary household use; and that said well as dug by the plaintiff has failed to benefit this defendant in any manner, and is not being used and has not been used by her, and the same is not reasonably fit for the use intended, and is without any value to her whatsoever. She alleged that the consideration of the contract sued on and for which the lien is sought to be established has totally failed, and that she is not indebted to the plaintiff in any sum whatsoever.
The case came on for trial before a jury in said court. The plaintiff testified to facts tending to show: that he had the agreement set out to drill a well on the property of Mrs. Putnam for $3.75 per foot, which was 50 cents off the usual price, and that he agreed to do this because the same was to be drilled in "slate country" and would not require as much casing, and he agreed to furnish the galvanized pipe casing as far as was necessary only; that he agreed only to procure enough water to furnish the home of the defendants, as they informed him that they did not need water for stock since they had a creek running through the property; that he began work under the agreement about May 1, 1950, and struck water at about 86 feet from the top, but drilled deeper to obtain more water and to have storage for the water coming in; that he drilled through clay, then slate after 20 feet, and then into limestone rock; that he put a six-inch galvanized pipe casing down into the rock some two feet, making 22 feet of casing, which was all that was required; that the well is 514 feet and 8 inches in depth, and he went this deep as he was trying to get more water and to have storage for the water already reached; that he tested the well with a bailer, which was the usual way, and found that he was getting some 40 gallons hourly; that the well would store some 700 gallons of water, same filling up to within 20 feet of the top; that the amount of water he produced and the amount the well would store was adequate for the average home; that this well produced 30,000 gallons a month, sufficient for normal uses; and that the water was soft, pure, and clear. The plaintiff further testified as to the amount of work, time employed, and as to the help of his brother and another. He testified that the defendants did inquire of him after he had begun the work, sometime in June, as to how much water would be needed for a dairy, and also that they inquired of him why he was not using the pipe all the way, and that he informed them. He told them that casing the well the entire length or depth was not necessary. He testified that he fully completed his contract, and that the defendants had failed and refused to pay him therefor.
The defendant W. D. Putnam testified that the plaintiff agreed to drill a well and to procure soft, clear water, no matter how deep he had to go, and to use galvanized pipe for casing all the way, and stated that, if they hit lime water, he would case it back and keep drilling. This defendant further testified that he informed the plaintiff that he had a bunch of hogs and they needed a lot of water, and also told him that he would likely go into the dairy business later. He further testified that he fully informed the plaintiff that he would need water for his lawn, and that his home had all the modern electrical equipment and would require lots of water. He testified that the plaintiff did not produce the amount of water needed and did not case the well as agreed, and that he refused to drill further. He stated that the well was not dug through slate and limestone rock. Mrs. Putnam testified to substantially the same facts as did her husband, W. D. Putnam. The defendants further testified that the well, as it was dug by the plaintiff, was not in compliance with his contract, producing an insufficient amount of muddy lime water, not adequate for their needs and unfit for use, and that they never used it. They both testified that the plaintiff had not completed his contract and that they did not refuse to pay him, but informed him that he would be paid when he dug the well as he had agreed to do.
The jury returned a verdict in favor of the plaintiff and against the two defendants for $150, and declared the same to be a special lien against the realty described in the petition. The plaintiff moved for a new trial on the general grounds and by the amendment added certain special grounds, which are dealt with in the opinion. The trial judge overruled the motion for a new trial, and to this judgment the plaintiff, Austin Abernathy, excepts.
1. In the first amended ground of the motion for new trial, the plaintiff says that the court erred in charging the jury, "that the plaintiff in this case enters on the trial of the case with the burden of proof on him to prove to you by a preponderance of the evidence the correctness of his contentions." This charge was not error. The defendants did not admit, by their pleadings or otherwise, a prima facie case in the plaintiff. See Standard Paint Lead Works v. Powell, 27 Ga. App. 691 (2) ( 109 S.E. 513). If the plaintiff had desired a fuller and more complete charge to the jury on the subject of the burden of proof or as to the shifting thereof, he should have timely and properly requested such a charge. Cook v. Hightower Co., 13 Ga. App. 309 (4) ( 79 S.E. 165). The burden was on the plaintiff to prove his contentions. See Code, § 38-103. "Except in cases where the defendant by his plea admits a prima facie case as alleged in the petition, so that the plaintiff without more could recover in the amount sued for, or where the defendant in open court makes such an admission and thereby assumes the burden of proof, the burden in all cases brought ex contractu lies upon the plaintiff, and it is incumbent upon him to establish all of the unadmitted material allegations as laid in the petition. Since the plea in the instant case does not admit a prima facie case, upon which the plaintiff, without more, could recover in the amount sued for, the general burden remained upon the plaintiff and in the absence of a timely request, it was not incumbent upon the court to charge upon the shifting of the burden under the development of the evidence." Standard Paint Lead Works v. Powell, supra. There being no request for a full and complete instruction to the jury on this subject, and the charge given not being incorrect insofar as it went, no reversible error appears. This case is not at all like such cases as Cox v. McKinley, 10 Ga. App. 492 ( 73 S.E. 751) and De Lay v. Galt, 141 Ga. 406 ( 81 S.E. 195). The jury here did not render a verdict in favor of the defendant Mrs. Putnam on her so-called plea of failure of consideration, but found in favor of the plaintiff on a quantum merit, and it is the plaintiff who complains of the verdict and seeks a new trial. The plea interposed by Mrs. Putnam amounted to merely an amplification of the defense set up in her original answer, which was to the effect that the plaintiff had not completed his parol undertaking to drill this well on her property.
2. In the second amended ground of the motion for new trial, the plaintiff insists that the charge above quoted was error, for the reason that the trial judge failed to instruct the jury in connection therewith that the burden was on the defendants to establish their contentions and affirmative defense by a preponderance of the evidence. A correct and applicable instruction to the jury is not error because the court fails to charge in connection therewith another correct principle of law. Besides, as we have seen, no request was made for a full and complete charge on the question of the burden of proof.
3. The plaintiff, in the third amended ground of his motion for new trial, complains that the court erred in charging the jury as follows: "I charge you that ordinarily where one renders services or transfers property valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof, but this presumption does not usually arise in cases between near relatives. . . I further charge you that if you find from the evidence in this case that the contentions of the defendants are correct, and that the plaintiff in the case contracted to furnish them soft water or to case the well as contended by the defendants, and if you find that that was the contract, and that the plaintiff did not either furnish soft water or case the well, as the defendants contend that he agreed to do, then you would not be authorized to find for the plaintiff the full amount sued for. . . I further charge you, that if you find from the evidence in this case that they did enter into a contract for the digging or boring of the well, as set out in the plaintiff's petition, and that the plaintiff entered upon the work and furnished water of value to the defendants, that in that event the plaintiff in this case would be entitled to recover at your hands a verdict for whatever you find to be a reasonable value of the work done and the materials furnished. That would be a matter for the jury to determine from all the evidence and the facts and circumstances in this case. . . If you do not find for the plaintiff that amount (the contract price, $1927.50), then you would find — and you also find that there was an agreement between them to dig or bore the well, and the plaintiff did dig or bore the well to the depth claimed by him, and has furnished water that is of value to the defendants, then you would find, as stated, a verdict for the plaintiff for whatever amount you find to be the reasonable fair value of the work done and materials furnished. In that event, the form of your verdict would be, `We, the jury, find for the plaintiff, so many dollars and cents,' whatever amount you think would be right and fair and reasonable and just between all the parties to this case."
Error is assigned, in special ground 3 on the foregoing excerpt from the charge, as follows: "(a) It was, in effect, a charge of the law relating to partial failure of consideration, which was not authorized by the evidence, in that the jury was not given any data from which they could estimate with reasonable certainty the abatement of the full amount of the contract price; (b) it was inapplicable to the issues made by the pleadings and the evidence, in that there was no plea or evidence tending to show a partial failure of consideration, but on the contrary, the defendants contended only that there was a total failure of consideration; (c) it was, in effect, a charge of the law relating to quantum merit, which was not authorized by the pleadings or evidence, in that the suit was brought only on an express contract, and movant could not and did not submit evidence which showed the reasonable value of his services; (d) it was confusing and misleading to the jury in that it caused them to believe that they did not have to determine whether or not an express contract was made and complied with, and could instead, find for the plaintiff the value of the services rendered. Movant avers said charge was prejudicial to him in that it caused the jury to find a verdict for him in an amount less than the express contract price sued for."
In special ground 4 of the motion for a new trial, the plaintiff complains of this charge: "If you find from the evidence in this case that they did enter into a contract for digging or boring of the well, as set out in the plaintiff's petition, and entered upon the work and furnished water of value to the defendants, that in that event the plaintiff in this case would be entitled to recover at your hands a verdict for whatever you find to be the reasonable value of the work done and materials furnished. That would be a matter for the jury to determine from all the evidence and the facts and circumstances in this case." Error is assigned by the plaintiff on this charge, as follows: Said charge was "erroneous and not sound as an abstract principle of law; (b) was misleading and confusing to the jury, in that it was in conflict with a previous charge given to the jury as follows: `If you find from the evidence in this case that the contract as claimed by the plaintiff in this case was made and entered into by the parties, and that the plaintiff completed his work and furnished the materials as contracted for, that the plaintiff would be entitled to recover whatever was the contract price, which, I believe, the pleadings show to be $1927.50'; (c) was erroneous in that it prevented the jury from finding in favor of the plaintiff the contract price, even though the defendants failed to prove, by a preponderance of the evidence, a total or partial failure of consideration. Movant avers said charge was prejudicial to him in that it caused the jury to find a verdict in his favor in an amount less than the express contract price sued for."
The plaintiff contends that the contract to drill this well was fully and faithfully performed and completed by him according to the express contract he made, and he so testified. He sets up that he sued on an express contract with the defendants, which had been completed and performed according to its terms. While, under the plaintiff's pleadings and the evidence, the jury could have found that the plaintiff had completed his express contract and had performed the same as agreed and was entitled to the amount thereof, the jury did not see fit so to find, but found that the plaintiff had not performed his alleged express contract sued on, and was not entitled to recover the contract price, being the amount sued for. It is contended by the plaintiff that, under the principle of law held in Shropshire v. Heard, 27 Ga. App. 256 ( 107 S.E. 892) — that "The plaintiff sued on an alleged express contract, . . he was not entitled to recover on a quantum merit" — the foregoing charges were error and prejudicial to him and permitted the jury to find for a lesser sum than the contract price. The jury having found against the contentions of the plaintiff that he had compiled with the express contract with the defendants as set up by him — he would be, under his own contentions, therefore, entitled to nothing. He states that he introduced the evidence upon which a finding for less than the amount he agreed to do the work of digging this well for would be unauthorized. In effect, the plaintiff says, "I am entitled to recover all sued for under this express contract or nothing." The jury found that he was not entitled to recover on the express contract for the sum sued for, but did find in his favor for $150. The plaintiff can not very well complain of the charges set out in these special grounds, as based thereon he received a verdict in his favor for $150, to which sum he was not, under his own contentions, entitled under the facts of this case. It is settled law that a plaintiff who sues upon an express contract can not recover on a quantum merit. Alford v. Davis, 21 Ga. App. 820 ( 95 S.E. 313); Hightower v. Scarborough, 79 Ga. App. 342 ( 53 S.E.2d 726). However, without deciding whether the charges excepted to infringe the above principle, we do not think that the plaintiff is in a position to complain, having as a result thereof received $150, to which he was not entitled under the findings of the jury and his own contentions.
4. The verdict in favor of the plaintiff was not manifestly against the evidence and was not so small and inadequate as to justify the inference of gross mistake or undue bias on the part of the jury against the plaintiff. The jury could easily have found in favor of the defendants. The jury could have found that the plaintiff was not entitled to recover anything, that he did not complete his contract, and that the work done by him was worthless to the defendants. The plaintiff testified as to facts showing the work done, the time employed, the help used, the material used; and that such work was not entirely worthless and without value, and the plaintiff was, therefore, entitled to recover something. The jury were authorized to find that the plaintiff had not performed his undertaking to drill the well as he contended, and that he was, therefore, not entitled to the sum sued for, $1927.50; but that there was an implied obligation on the part of the defendants to pay him for the value of the work as done by him, under the provisions of Code § 3-107, which provides 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." It cannot be said as a matter of law that the real estate of the defendant Emma D. Putnam was not improved to some extent by the services rendered and the work done by the plaintiff. See Collins v. Frazier, 23 Ga. App. 236 ( 98 S.E. 188).
The jury would have been authorized under the evidence to have rendered a verdict for the defendants. The plaintiff is complaining of the verdict and seeking a new trial. The verdict here, which was on a quantum merit, was not as a matter of law unauthorized.
The court did not err in overruling the plaintiff's motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.