Haiman & Brother v. Moses & Gerrard , 39 Ga. 708 ( 1869 )

Brown, C. J.

1. We have ruled again and again that this Court will not grant a new trial when the evidence is in conflict, and no rule of law has been violated, and the Judge who tried the case is satisfied with the verdict.

2. The motion for a new trial in this case rests mainly on the ground that the declaration charges that the defendants are indebted to the plaintiffs in the sum of $2,500 00 for “professional services,” and that plaintiffs claim $250 00, as a retaining fee, and the value of the services rendered by them in addition to the retainer, and that upon this declaration, evidence was submitted to the jury to sustain the claim for both the retainer and the quantum meruit. The Court charged the jury that they should first ascertain from the evidence what the services of plaintiffs were reasonably worth, to which they should add $250 00 for the retainer.

Counsel for plaintiffs in error insists that plaintiffs might have recovered $2,750 00 under this charge, and under certain parts of the evidence; that is, $2,500 00 for the services rendered, and $250 00 for the retainer, when the declaration only claims $2,500 00 as clue. And the counsel insists, that the declaration should have contained a count for the services rendered, and another for the retainer, and that as this was not the case, a new trial should be granted. But there are two replies to this: first, that the jury did not find the $2,750 00, nor the half of that sum, and the objection on that ground is imaginary rather than real; second, the evidence as to the retainer was permitted to go to the jury without objection by the defendants. Indeed, it may be said without any great inaccuracy in language, that the retaining fee is a fee for professional services, though, it is insisted, that the retainer is not paid for services rendered but in consideration that the counsel will not take a fee from the other side, not on an agreement to do service for the defendant but on an agreement not to do service against him. Without entering into a discussion of the correctness of this distinction, we are satisfied to put the case on the ground that there was sufficient evidence to support this verdict with or without including the retainer in the amount found by the jury.

If a party permits evidence to go to the jury without objection, and the jury find on the evidence, the party is not entitled to a new trial on the ground that the allegation and the proof do not correspond. Generally, when a party permits proceedings to be had, in the progress of his case, without making any objection, the Court will hold him to have waived the objection, and will not relieve him against the consequences of the proceeding, to which he did not object at the proper time. Dudley’s Reps., 209; Ga. Decisions, part 2,131; 2 Kelly, 281; 9 Ga., 359; 22d Ga., 24, 330; 27 Ga., 378; 36 Ga., 599 ; 37 Ga., 102.

We are satisfied the objection to the evidence came too late in this case after verdict.

Judgment affirmed.