Warnell v. Ponder , 54 Ga. App. 1 ( 1936 )

Jenkins, P. J.

The verdict in favor of the plaintiff vendees for $420 principal, and $134.75 interest, of the $2932.16 damages claimed on account of alleged misrepresentations by an agent, and failure to deliver part of the pine-tree boxes and other personalty purchased with a turpentine plant, was authorized under the conflicting evidence. There is no exception to the recovery of interest as such.

The brief of evidence, approved by the judge, refers to tlio introduction of an “ Exhibit A,” described as a bill of sale executed by the defendants to the plaintiffs, and to an “Exhibit B,” a copy made by an agent of the defendants from an original schedule of properties connected with the business sold, which copy it was testified was the basis of the agent’s representations. These exhibits appear to have been introduced without objection. However, neither is referred to in the bill of exceptions or the certificate of the judge thereon, or in his approval of the brief of evidence. Neither is copied as an exhibit or set out in the pleading, or copied or briefed in the brief of evidence or in the approved grounds of the motion for new trial. “Exhibit A,” as contained in the record, merely follows the brief of evidence and the order of approval thereon, and contains no verification or identification by the judge. No “Exhibit B” is copied or briefed anywhere in the record. Under well-settled rulings of the appellate courts, exhibits which are not contained or briefed in the approved brief of evidence or the certified bill of exceptions or approved grounds of the motion for new trial, and which are not specially verified or identified by the judge, can not be considered; and exceptions which require reference to such exhibits can not be passed upon. Code, § 70-305; So. Ry. Co. v. Dantzler, 99 Ga. 323 (25 S. E. 606); McGraw v. Crosby, 129 Ga. 780 (59 S. E. 898); Robinson v. State, 129 Ga. 336 (58 S. E. 842); Fox v. Fox, 172 Ga. 779 (158 S. E. 796); Braswell v. Brown, 112 Ga. 740 (38 S. E. 51); Hancock v. McNatt, 116 Ga. 297 (42 S. E. 525); Colquitt v. Solomon, 61 Ga. 492; Sovereign Camp Woodmen of the World v. Bell, 42 Ga. App. 323 (156 S. E. 235); Tomlinson v. Cox, 8 Ga. 111; Stubbs V. Central Bank, 7 Ga. 258. The facts do not bring the case within any exception to the rule stated, as where an instrument has been already “copied as an exhibit or set out in live pleadings,” and is thus already a part of the record specified to be sent to the appellate court, in which event, under the Code, § 70-305, it need not be more than merely referred to in the brief of evidence (see Allen v. Young, 62 Ga. 617; Patterson v. Collier, 77 Ga. 292, 296, 3 S. E. 119; Blow v. White, 41 Ga. 293; Carey v. Giles, 10 Ga. 1; Slappey v. Charles, 7 Ga. App. 796 (3), 68 S. E. 308); or where an exhibit has been approved or identified by the judge as forming a part of the record, and is referred to in the approved bill of exceptions as part of the record to be sent up to the appellate court. See Norman v. Smith, 131 Ga. 69 (3), 71 (61 S. E. 1039). Accordingly, the first, third, and fourth special grounds of the motion for new-trial, which would require a reference to the alleged “Exhibits A” and “B,” can not be determined. Moreover, even if the contents of both or either of such alleged exhibits could properly be considered, these grounds are without merit.

A ground of the motion for new trial excepts to oral testimony by a witness as to the contents of a schedule, the alleged “Exhibit B,” because “the witness stated that it was figures that he had copied from the original, and therefore secondary evidence, the original schedule being the highest and best evidence.” While the copy of the original schedule, comprising “Exhibit B,” is not contained in the record, it appears from the record that it was attached to the depositions of this witness. There is no exception to the admission in evidence of such copy schedule. Irrespective of the admissibility of the copy as secondary evidence, since it was admitted without objection and was before the jury, the admission of the mere statement by the witness who made the copy, as to some of its contents, could not have been prejudicial to the defendants. See Hammack v. Davis, 49 Ga. App. 192 (3) (174 S. E. 725).

Another exception is to the court’s failure to give in charge to the jury without written request, the following: “When parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations is inadmissible to add to, take away, or vary the written instrument.” This exception is on the ground that the bill of sale, comprising the alleged “Exhibit A,” “contained all the representations made by the defendants to the plaintiffs.” This document contained the following description of the properties sold: “one certain turpentine plant and business,” as described, “and all the assets and properties used in connection therewith, including, without intending to limit the generality of the above description, the following” personal properties mentioned. Under the italicized language, any asset or property which parol testimony showed was “used in connection with” the “turpentine plant and business” was included in the sale, and parol testimony as to representations relating to any such asset or property was not excluded by the terms of the instrument. Therefore a charge that the writing “ contained all the representations made by the defendants to the plaintiffs” would have been unadjusted to the evidence, and erroneous. For the same reason, it was not error to refuse the request to charge as contained in the fourth ground, since such request contained, among other legal principles, a similar instruction.

The second ground shows no prejudicial error in the admission of testimony by a witness as to the number of turpentine boxes received by the plaintiff vendors, which was introduced for the purpose of proving the alleged shortage, and to which exception was taken on the ground that the evidence showed that the witness had merely compiled his data from figures written down and tallied by other persons from numbers orally stated to them by the persons actually counting the boxes. Irrespective of the legal admissibility of this testimony, its admission could not have injured the defendants, since similar testimony by the same witness, with an additional statement of the total numbers of boxes so counted and compiled, to the admission of which there was no exception, appears elsewhere in the record.

Judgment affirmed.

Stephens and Button, JJ., concur.