Finn v. McAllister

Stephens, J.

1. Error assigned upon alleged prejudicial remarks by opposing counsel in the presence of members of the jury is not shown where it does not appear that the remarks were heard by any of the jurors. Where it appears from the certificate of the court that the court “hardly heard” the remarks, that the jurors “were sitting towards the rear of the courtroom,” and that the court did “not think” the jurors heard the remarks, it does not appear that the remarks were heard by the jurors.

2. In a suit to recover the contract price for installing electrical appliances in the defendant’s building, where the defendant pleaded that the services were not performed in accordance with the contract, and that he was entitled to a credit in an amount equal to the cost to the defendant of having the contract completed, the plea set up a failure of consideration, and there being evidence to sustain the plea, there was presented an issue of failure of consideration, and the court did not err in submitting this issue to the jury.

3. The evidence having presented an issue whether the plaintiff had fully performed his obligations under the contract, and whether the defendant, by reason of the failure of the plaintiff to install the electrical appliances in accordance with the contract, was damaged thereby in the amount of the cost incurred by the defendant in completing the contract, and these issues having been submitted to the jury, who found in favor of the plaintiff in the full amount sued for, and thereby found against the defendant’s contention that the defendant was damaged in some amount by the plaintiff’s breach of the contract, the rejection by the court of a proffered amendment to the plea, alleging an additional item of damage to the defendant as a result of the alleged breach of the contract, was necessarily harmless to the defendant, and the court did not err in rejecting it.

Decided January 7, 1933. Hyman M. Morris, for plaintiff in error. Thomas H. McLemore, Joe F. WaiTcins, contra.

4. The evidence authorized the verdict found for the plaintiff.

5. The superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., concur.