Opinion
36272.
DECIDED SEPTEMBER 20, 1956.
Action on contract. Before Judge Long. Bibb Superior Court. April 30, 1956.
Miller, Miller Miller, for plaintiff in error.
Jacobs Gautier, contra.
1. A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge.
2. An assignment of error which, if it shows error, was such as benefited the plaintiff in error will not cause a reversal of the case.
3. Where the trial judge charges generally on the burden of proof, if additional instructions are desired on the subject they should be the subject of a timely written request in accordance with Code § 81-1101.
4. Where there is any evidence to support the verdict of a jury approved by the trial judge this court will not disturb it on appeal.
DECIDED SEPTEMBER 20, 1956.
E. R. McKinney brought an action against Samuel F. Woodard in which he sought to recover $5,000 as the alleged difference in the purchase price of described real estate in Bibb County, Georgia, sold under an oral contract between the plaintiff and the defendant and the amount paid by the defendant towards such purchase price, and also $180 which the plaintiff alleged he lent the defendant to pay the closing costs in connection with a loan which was secured on the property. The defendant, in his answer, alleged that the agreed selling price under the oral contract was $11,500 and that a part of such purchase was to be paid in labor furnished the plaintiff by the defendant, that it was agreed between the plaintiff and the defendant that the proceeds of the loan secured on the property from the Macon Federal Savings Loan Association less the amount of the closing costs would be paid to the plaintiff in full settlement of the purchase price of the real estate, that the defendant had paid the plaintiff about $1,000 prior to the time when the transaction was completed, that he had performed certain labor for the plaintiff, and that this was to make up the difference in the amount of the loan and the total purchase price, that the plaintiff should not call on the defendant for any additional sums for the purchase price of the real estate, that in addition to the above it was agreed that the defendant would receive $200 of the amount secured from the lendor at the time the transaction was completed, that it was further agreed that the plaintiff would complete the construction of the house on the real estate, various items being listed in the defendant's answer as not having been completed, that the plaintiff did not complete the house, that it would cost the defendant approximately $2,000 to complete the house, that at the time the house was sold it was agreed that the defendant would be furnished water and was furnished water from a line run by the plaintiff, but that after the transaction was completed the plaintiff advised the defendant that he could not continue to use the water line, that it cost the defendant $900 to run water to the house, and that he is entitled to recover from the plaintiff this sum which he expended to run water to the house. The defendant denied that he was indebted to the plaintiff in any amount and alleged that he should recover from the plaintiff the sum of $3,100 which represented the cost of having the house completed, the cost of running water to the house and the $200 which he was to receive from the loan obtained from the Macon Federal Savings Loan Association. As further answer the defendant alleged that an accounting was had when the plaintiff executed the warranty deed to him covering the described property, that it was agreed that the services furnished the plaintiff by the defendant plus all the amounts of money paid to the plaintiff totaled $14,000, that it was agreed that this was the fair market value of the payments made by the defendant, and that this is the reason it was represented to the Macon Federal Savings Loan Association that the agreed price of the real estate was $14,000. On the trial of the case the jury returned a verdict for the plaintiff in the amount of $180. The plaintiff filed a motion for new trial on the usual general grounds which he later amended so as to include several special grounds. The amended motion for new trial was denied and it is to this judgment that the plaintiff excepts.
The plaintiff in his amended motion for new trial complains of various quoted excerpts of the charge which he contends expressed an opinion by the trial judge that there was a construction contract between the parties when one of the issues was whether the contract between the parties was for the construction of a particular house of the real estate sold or whether it was just a contract for the purchase and sale of this described tract of real estate, that the wrong measure of damages was charged with reference to the contention of the defendant that there was a construction contract which the plaintiff had breached, that the charge placed an undue burden on the plaintiff with reference to the burden of proof, and that the trial court erred in failing to charge certain quoted requests to charge tendered in writing to the trial judge before he began charging the jury.
1. "A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge." New York Life Ins. Co. v. Thompson, 50 Ga. App. 413 (1) ( 178 S.E. 389). See also, Sims v. Martin, 33 Ga. App. 486 (5) ( 126 S.E. 872). In the present case the contention of the plaintiff that the trial court erred in failing to charge the jury the written requests tendered by him is without merit inasmuch as such written requests were not adjusted to the pleadings and evidence.
2. The plaintiff contends that the trial court erred in charging the jury in substance that the measure of damages on the cross-action would be the cost to the defendant to bring the house up to the specifications allegedly agreed upon in the oral contract rather than that the measure of damages would be the difference in the market value of the house in its present condition and its value if it had been completed as agreed between the parties. It is unnecessary to decide if the proper charge was given the jury in this regard since the only witness that testified with reference to the costs of correcting the alleged defects testified the cost of correcting them would be approximately $3,275, while the only testimony as to the difference in the market value of the property in its present condition and its market value with the corrections made would be between $6,000 and $6,500. Therefore, if this charge was error it was harmless as far as the plaintiff, who sold the real estate, is concerned.
3. The plaintiff contends that the charge of the court placed an undue burden of proof on him. The charge of the court with reference to the burden of proof was substantially that the burden of proof was upon the plaintiff with reference to the petition and upon the defendant with reference to the allegations of the cross-action. If additional instructions were desired by the plaintiff with reference to the burden of proof they should have been the subject of timely written requests in accordance with the requirements of Code § 81-1101. See also Malleable Iron Range Co. v. Caffey, 64 Ga. App. 497 (4) ( 13 S.E.2d 722); and Cone v. Davis, 66 Ga. App. 229, 237 ( 17 S.E.2d 849).
An examination of the entire charge does not reveal that it expressed any opinion of the trial judge as contended by the plaintiff.
4. The remaining special ground of the amended motion for new trial is but an amplification of the general grounds and will not be considered separately.
The evidence presented on the trial of the case was in sharp conflict, there was hardly a word of testimony that was not contradicted by some other witness; however, the verdict returned by the jury was authorized by the evidence, and if the contention of the plaintiff that the defendant was bound by his answer which alleged that the sale price was represented to the Macon Federal Savings Loan Association in order to obtain a larger loan in correct, the verdict was still authorized by the evidence since there was evidence that the plaintiff was giving the defendant credit for the difference between the amount lent by the Macon Federal Savings Loan Association and the sales price of real estate whatever it was.
The trial court did not err in denying the plaintiff's amended motion for new trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.