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WEISS v. JOHNSON & JOHNSON CONSTRUCTION COMPANY, INC.
37299.
Action on contract. Floyd Superior Court. Before Judge Hicks. June 17, 1958.
QUILLIAN, Judge.
1. As the plaintiff did not renew his demurrer to the defendant's amendment after the addition of the affidavit thereto, the demurrer was waived, and the trial court consequently did not abuse its discretion in overruling the demurrer.
2. (a) The acceptor of a non-negotiable order agrees to comply with it according to its tenor, and such conditions attach to the acceptance as arise from the nature of the order and the transaction with which it is connected. Mutual Investment Corp. v. Friedman, 83 Ga. App. 544 (64 S. E. 2d 298).
(b) Where the order refers to a contract between the drawer and drawee it is assumed, in the absence of a stipulation to the contrary contained in either the order or the acceptance of the same, that compliance with the order is as a matter of course to be in accord with and under the conditions contained in the contract.
3. A party has no cause to complain that evidence not relevant to the issues made by the pleadings, but in rebuttal to that introduced by him, is admitted.
4. Where a verdict is demanded by the evidence, error in admitting evidence of no probative value will not require the grant of a new trial.
6. Where the entire evidence of a witness is set out in the ground, and it is apparent that some is relevant and admissible, the reviewing court will not consider objections made in general terms to the entire testimony.
7, 8. Evidence is relevant that establishes or illustrates the issue made by the pleadings.
9. It is harmless error to admit evidence not material to the issues of the case, but not of probative value and not of a prejudicial nature.
Ira Weiss, doing business as Pioneer Neon Supply Company filed a suit against Johnson & Johnson Construction Company, Inc. The petition alleged in part that: on September 9, 1953, the defendant agreed in writing to make the ten percent retention and final payment due under a contract between the defendant and A. G. Penuel, Jr., dated June 1, 1953, and in the total amount of $116,982 payable jointly to A. G. Penuel, Jr., and Pioneer Neon Supply Company; the agreement was made on behalf of the defendant by its agent and servant, Robert R. Johnson, who was then and there acting within the scope of his agency; pursuant to and in reliance on the agreement, the plaintiff herein loaned to A. G. Penuel, Jr., on October 1, 1953, the sum of $8,000, which was delivered by the defendant to A. G. Penuel, Jr., on January 1, 1954; the defendant failed to comply with the agreement in that it made the final payment direct to A. G. Penuel, Jr., by a check drawn payable to him alone, and not to Penuel and the plaintiff jointly; the plaintiff has been unsuccessful in its efforts to recover the $8,000, or any part thereof, from A. G. Penuel, Jr., and Penuel was on June 14, 1956 adjudicated a bankrupt; the plaintiff's claim against Penuel is not exempt from discharge of bankruptcy, and therefore the plaintiff will be unable to make any recovery from Penuel; on September 18, 1956, A. G. Penuel, Jr., received a discharge in bankruptcy from the Referee in Bankruptcy for the United States District Court for the Northern District of Georgia, Atlanta Division; the plaintiff herein received no payment on its claim as a result of the bankruptcy proceedings; the plaintiff's claim against Penuel has been discharged by said bankruptcy proceeding, and therefore the plaintiff has been, and will be hereafter, unable to effect any recovery from A. G. Penuel, Jr., due to the defendant's failure to comply with the said agreement; the plaintiff is entitled to recover of the defendant the sum of $8,000 plus interest on said sum at seven percent per annum from January 1, 1954.
On a previous appearance of the case this court held that the petition set forth a cause of action. Pioneer Neon Supply Co. v. Johnson & Johnson Construction Co., 95 Ga. App. 565 (98 S. E. 2d 156).
The defendant's answer as amended, after having denied the material allegations of the petition alleged in part that: the defendant admits that it did have a contract with one A. G. Penuel, Jr., to do certain work for the defendant on a construction job and that the defendant did hold back the usual 10% retention until the completion of the subcontract; the defendant admits that on or about September 9, 1953, A. G. Penuel, Jr., did request the defendant to make the 10% retention payable to A. G. Penuel, Jr., and Pioneer Neon Supply Company, but that on or about March 24, 1954, A. G. Penuel, Jr., came to the defendant and directed him to make final payment of the 10% retention to A. G. Penuel, Jr., only, which this defendant did; that the defendant had no contractual relations, no privity of contract and no dealings of any nature whatsoever with Pioneer Neon Supply Company and incurred no obligation to such concern and received no consideration for its so-called approval of the request of A. G. Penuel, Jr., to make the check payable to him and to the plaintiff jointly, but merely agreed to a request of A. G. Penuel, Jr., which he later withdrew; the defendant did enter into a subcontract with A. G. Penuel, Jr., for certain construction work at and for a total contract price of $116,982 and did retain or hold back, until completion of the sub contract the usual 10% retention to insure completion of the work and for assurance that labor and material procured by the subcontractor were paid for and that as the general or prime contractor, such was its duty; that A. G. Penuel, Jr., ran into serious financial difficulties during his construction work and failed to pay his labor and material bills so that his creditors, who furnished labor and material for his sub contract with the defendant, including Pye-Barber, Gulf Oil Corporation and D. & B. Fabricators or Bingham Construction Company, Inc., were constantly in touch with the defendant early in 1954, threatening to take legal action to enforce their claim and to file liens against the property being improved; that when time for settlement with Penuel came, the defendant was shown that all claims against A. G. Penuel, Jr., on said job, had been satisfied except the large claim of D. & B. Fabricators, for labor furnished to A. G. Penuel, Jr., that Richard E. Bingham, of D. & B. Fabricators and Bingham Construction Company, Inc., was at defendant's office in Atlanta, with A. G. Penuel, Jr., on or about March 25, 1954, demanding the money due to his firm and warned the defendant that he was prepared to file a claim of lien against the job and would do so if settlement was not made at that time; that thereupon defendant delivered to A. G. Penuel, Jr., its check, payable to A. G. Penuel, Jr., in the amount of $11,144.86 as final payment due under its contract with A. G. Penuel, Jr., and A. G. Penuel, Jr., thereupon endorsed the check and immediately turned it over to Richard E. Bingham in the defendant's Atlanta office; that the total contract price was reduced by $1,092 due to omitting formed cant strips at intermediate fire walls, so that the total contract price due to A. G. Penuel, Jr., was $115,890, which total sum was paid to A. G. Penuel, Jr., by defendant, the final payment being made on or about March 25, 1954 in the amount of $11,144.86.
The plaintiff filed a demurrer to an amendment to the answer filed by the defendant upon the ground that it did not have an affidavit attached stating that the amendment was not filed for the purpose of delay. The plaintiff also filed a motion to compel the defendant to pay all costs which had accrued upon the date the amendment was filed. This motion and the demurrer to the amendment were overruled and the plaintiff excepts.
On the trial Ira Weiss, the plaintiff, testified in part that: he was the owner of the Pioneer Neon Supply Company, located in Atlanta, Georgia; during 1953 he had a conversation with Penuel in regard to his loaning him some money; in September 1953 Penuel came to him and wanted to borrow some money and he refused him unless he had adequate security; Penuel told him he was doing a job as a subcontractor for Johnson & Johnson Construction Company and the contract amounted to approximately $160,000 with a tentative completion date of December 31, 1953; Penuel also told him that he had an agreement with Johnson & Johnson that he would draw money each month, according to the amount of expenses he had, but that Johnson & Johnson were holding back ten percent of the total price of $160,000; he then told Penuel that before he would consider making him a loan he would have to bring him a letter from Johnson & Johnson stating that the final ten percent of the $160,000 would be made payable to the two of them jointly; about a week later Penuel came into his office and showed him a letter signed by Mr. Johnson agreeing that the final payment would be made payable to Penuel and Pioneer Neon Supply Company; after Penuel brought him the letter he loaned him $8,000 in reliance on the document; he gave Penuel a check for $8,000 and he has never paid any portion of the loan; Penuel later went into bankruptcy; he had loaned him money previously; Penuel gave him a post-dated check to hold as surety for the loan; when the check became due he could not remember whether he presented it for payment at the bank on which it was drawn; at the time the check became due he asked Penuel for his money and he told him there were a few more details to be completed on the job before he would be paid; after he found out that Penuel had been paid the money he contacted his lawyer who in turn contacted Johnson & Johnson in regard to the money.
In response to a request for admissions the defendant admitted in part that: it made the check for the final payment payable to A. G. Penuel, Jr., that the check was delivered to Penuel without notice to the plaintiff; the letter written to the defendant by Penuel provided as follows:
September 9, 1953.
"Johnson & Johnson Const. Co., Inc.
"P. O. Box 1386.
"Gentlemen:
"I hereby request and authorize you to make the 10% retention and final payment on our contract dated 6/1/53, in the total amount of $116,982, payable jointly to myself, A. G. Penuel, Jr. and Pioneer Supply Company.
"Thank you for your consideration in this matter.
"Sincerely,
"A. G. Penuel, Jr.
"Robert R. Johnson
"Approved 9/9/53 By
"The Johnson & Johnson Const. Co., Inc."
Robert R. Johnson, president of the defendant corporation testified in part that: Penuel came to him before any materials or labor had started on the job; Penuel told him that he worked from a financial standpoint with the Pioneer Neon Supply Company and they assisted each other in their financial transactions; Penuel requested that the final check be made out payable jointly to him and the Pioneer Neon Supply Company; he signed the letter Penuel brought to him and also signed a copy and sent it to the home office in Rome; that the final payment to Penuel was approximately $11,000; at the time Penuel was paid there were no liens on the property, but they had forestalled legal action against the property because they had promised several creditors they would be satisfied prior to the final payment; he entered into a contract with Penuel for the latter to do some subcontracting on June 1, 1953; the last payment on the contract was withheld until the subcontractor had satisfied the defendant, owner and architect that the work was satisfactory and that all bills had been paid; the date of the last check was March 24, 1954; Bingham requested that he be present when the last payment was made to Penuel because Penuel owed him more money than the last payment amounted to and he wanted to be sure and be on hand when the check was issued to Penuel; on the morning the payment was made Penuel and Bingham came to his office and he directed them to go and clear up all the bills with the City of Atlanta or elsewhere and bring him the receipted bills from the parties before he would issue the check; he made an effort to check on whether or not the bills were paid; this was done by Jackson, a man in the defendant's office calling some of the known suppliers; after spending some time away from the office Penuel and Bingham returned in the middle of the afternoon and satisfied him that all known outstanding bills had been cleared; there was some discussion as to how the check would be made out, due to the heavy interest of Bingham, it was discussed whether to make the final check out jointly to Penuel and Bingham; Penuel requested him to make it out to him and agreed to satisfy Bingham; the check was then made payable to Penuel; he turned the check over to Penuel in Bingham's presence; Bingham and Penuel then left the office; Bingham had been to his office on previous occasions inquiring about the final payment to Penuel; the first notice that he had from the plaintiff that he claimed he was indebted to him was approximately two years after the final check was issued; the responsibility of a general contractor is to deliver the building being constructed complete and free from all encumbrances, ready to occupy.
Clarence Jackson, testified in part: that he was the office manager of Johnson & Johnson during the summer of 1953; that he was present when the check was issued to Penuel, and Penuel and Bingham then left the office together.
Richard E. Bingham, testified in part: that he was in the steel building and erection business; he did some work for Penuel in the summer of 1953; the defendant was the prime contractor on the construction job; when he completed his work for Penuel he was not paid, and Penuel owed him approximately $15,000 for his work; he contacted the defendant's office several times about payment of the money; on the day the final payment was made he accompanied Penuel to the defendant's office; the check was passed from Johnson to Penuel who indorsed the check and gave it to him as a partial payment or final payment on the balance Penuel owed him; he had no other business dealings wish Penuel during 1953 or 1954.
The defendant made a labor and materials payment bond to the owner of the building constructed which provided in part that: "1. A claimant is defined as one having a direct contract with the principal or with a subcontractor of the principal for labor, material, or both, used or reasonably required for use in the performance of the contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the contract. 2. The above named principal, and surety hereby jointly and severally agree with the owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant may sue on this bond for the use of such claimant in the name of the owner, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon, provided, however, that the owner shall not be liable for the payment of any costs or expenses of any such suit."
At the conclusion of the evidence the defendant made a motion for a directed verdict which was sustained. The plaintiff also made a motion for a directed verdict which was denied.
The plaintiff then filed a motion for a new trial and a motion for a judgment notwithstanding the verdict, both of which were denied. The plaintiff excepts and the case is here for review.
1. Counsel for the plaintiff insists that the trial judge erred in not sustaining his demurrer to the amendment and in not sustaining his motion to compel the defendant to pay all accrued costs because the defendant did not attach an affidavit to the amendment stating that it was not filed for the purpose of delay. The defendant filed an affidavit on the date of the hearing which did not meet all the requirements of Code 81-1310, but did aver that the amendment was not offered for purposes of delay. Generally it is within the court's discretion as to whether the amendment will be allowed without the affidavit. Roberson v. Weaver, 145 Ga. 626 (2) (89 S. E. 769), Robinson v. DeVaughn, 59 Ga. App. 37 (200 S. E. 213). The affidavit having supplied the general information that the amendment was not filed for the purpose of delay, the trial court did not abuse its discretion in this case. Moreover, after the affidavit was affixed to the amendment, no further objection was made to the allowance of the amendment, and hence the objection made before the affidavit was attached to the amendment was waived.
2. We must decide in disposing of this case, as in every case where the breach of a contract is alleged, whether the instrument which is the basis of the action constituted a valid legal promise for the doing or not doing of a particular thing (Code 20-101) and whether the defendant's conduct amounted to a violation of that promise.
In reaching a conclusion as to these matters, consideration must be given to the consideration for the promise, its nature, the circumstances under which it was made, the subject matter with which it dealt and the rules of law under which it is to be construed and enforced.
A similar but by no means identical promise is referred to in Wehle v. Baker, 97 Ga. App. 111 (102 S. E. 2d 661) as a contract of guaranty. In that case the promise was properly catalogued because it was not the acceptance of an order, but an original and unconditional agreement to pay a specified sum of money from a designated fund. The consideration of the promise was a benefit accruing to the promissor by reason of the promisee making a loan to a third party.
The promise made by the defendant in this case is the acceptance of a non-negotiable order.
The acceptor of such an order agrees to comply with it according to its tenor, and such conditions attached to the acceptance as arise from the nature of the order and the transaction with which it is connected. Mutual Investment Corp. v. Friedman, 83 Ga. App. 544 (64 S. E. 2d 298).
Thus to the acceptance of a nonnegotiable order the rule stated by slightly varying language in the cases of Citizens Nat. Bank at Brownwood v. Ross Const. Co., 146 Tex. 236 (206 S.W. 2d 593, 595), and Wolters Village Management Company v. Merchants & Planters Nat. Bank of Sherman, 223 F. 2d 793, 801 is applicable. In the former case it is held, as quoted from the reporter system headnote: "If contractor having contracted with United States for erection of naval facilities, promised to make payments on contracts with subcontractor to subcontractor and bank jointly, contractor would not be liable to bank for breach of agreement where promise referred only to payments due to subcontractor under contracts, and balance in contractor's hands was not payable to subcontractor but to materialman of subcontractor because of default of subcontractor in making payments to materialman. Miller Act, 1, 2, 40 U. S. C. A. 270a, 270b." Page 593.
"But if it be contended that there is implicit in the wording of the letter, the attendant circumstances, and the subsequent dealings of the parties, a promise on the part of Ross to make the payments jointly, as claimed, still it is to be observed that the letter referred to 'payments to him (Campbell) under these contracts' and acknowledged that these were the payments which Campbell had instructed Ross to make to himself and the Bank together. Ross made the payments in keeping with Campbell's instructions until one of the latter's creditors who had furnished material on the jobs asserted a paramount right to the balance which remained due on the subcontracts. And in fact, Campbell did owe this materialman and could not pay him. Accordingly, Campbell had no further payments (except the $4.46 item) due him, and the balance in the Construction Company's hands was payable not to Campbell but to the materialman, and was properly so applied. Seaboard Surety Co. v. Standard Accident Ins. Co., 277 N. Y. 429, 14 N. E. 2d 778, 117 A. L. R. 658." Page 595.
The language of the Wolters case at page 801 is: "The brief of appellant Wolters discusses numerous cases which are claimed to support its position, but most of these are so inapposite to the issues as we view them, having eliminated the assignment theory from our ratio decidendi, that they require no discussion. One case, however, Citizens National Bank at Brownwood v. Ross Const. Co., 146 Tex. 236, 206 S.W. 2d 593, 594, bears some considerable similarity on its facts. There, the prime contractor wrote a letter to the bank, stating that the subcontractor 'has requested that we give you this letter with instructions that all payments to him under these contracts are to be made payable jointly to Citizens National Bank, Brownwood, and the' subcontractor. The Bank made the loan and the prime contractor made progress payments by checks made out jointly. The subcontractor breached his contract by failing to pay a materialman, whom the prime contractor then became obligated to pay by reason of a federal statute. The contractor took $10,000 of the balance owing to the subcontractor and instead of paying it out by joint check as before, satisfied the claim of the materialman. The bank then sued the prime contractor, as in this case. The Texas Supreme Court held (1) that there was no assignment; (2) that there was no promise by the prime contractor to make out the checks jointly, but only a recitation that it had been instructed to do so by the subcontractor; and (3) even if there was such a promise inferred in fact, it was only to make 'payments . . . under these contracts', and since the contractor was not obligated under the contracts to pay this $10,000 to the subcontractor, it had in no event breached its promise. The Bank therefore could not recover.
"The present case is easily distinguishable both because there was an express promise to make payments by joint checks, and also because all the payments made in this case contrary to that promise, were payments to which the subcontractor (and derivatively, the Bank) was entitled. There is no inconsistency between the Citizens Bank case and our holding herein."
It must be observed that this is not a case brought for the breach of an absolute promise to pay money or make a particular fund available to the promisee, as in Nello L. Teer Co. v. Kanawha Valley Bank, 227 F. 2d 306, consequently that case and Federal Land Bank of Columbia v. Blackshear Bank, 182 Ga. 657 (186 S. E. 724) appear from the allegations of the petition to support somewhat the plaintiff's contentions as pleaded, they have no general application to the facts of this case as shown by the evidence adduced on the trial.
The undisputed evidence submitted on the trial of the case we now review showed that the defendant contracted with the owner of real estate to build a warehouse upon the property. The defendant then in the role of prime contractor engaged A. G. Penuel, Jr., a subcontractor, to construct the building in part. The contract contained the usual ten percent retention contract, the meaning of which we have discussed. While the contract had only partly been performed by the subcontractor, a fact of which the plaintiff was aware, the defendant accepted the request of the subcontractor, Penuel, to make "the ten percent retention and final payment" on the contract payable to Penuel and the plaintiff jointly. "The ten percent retention and final payment" referred to in the contract between Penuel and the defendant is generally tended in builders' contracts "the retention fee". It is usually ten percent of the gross contract price of construction undertaken. In these circumstances the obligation of the defendant was to make the payment jointly to the subcontractor, Penuel, and the plaintiff, only in the event Penuel performed his contract according to its terms and was upon its completion entitled to be paid some sum of money. The completion of the contract necessarily included the requirement that the subcontractor satisfy charges for labor and materials incurred by him in carrying out his contract and for the payment of which the defendant would otherwise become liable.
When the case was formerly before this court (Pioneer Neon Supply Co. v. Johnson & Johnson Construction Co., 95 Ga. App. 565, 98 S. E. 2d 156), it was held that the uncontradicted facts alleged in the petition set forth a cause of action. The petition showed the order was drawn on the defendant by the sub contractor, Penuel; the acceptance of the order; the fact that upon the faith of the acceptance the plaintiff made an $8,000 loan to Penuel and that the defendant broke its promise contained in the acceptance.
It was in substance held that under the facts alleged in the petition on the provisions of Code 37-113, "When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss," were applicable.
It must be noticed that the opinion then written assumed that Penuel, the subcontractor, was upon completion of the contract with the defendant entitled to be paid some sum which was subject to his order that it be paid jointly to him and the plaintiff. For as is noted from the report of the case, both the plaintiff and the defendant were at the time the order was accepted informed by the very words of the order that payment was to be made from the retention fee in the event the subcontractor upon the completion of his contract with the defendant was entitled to any fund held by the defendant to secure the subcontractor's faithful performance of his contract, including the retirements of demands he incurred for labor and material, and the defendant, the prime contractor, would otherwise become liable.
Thus the order and the acceptance were conditioned upon a contingency that from the allegation in the petition that the defendant breached his promise to the amount of the retention fee was properly assumed by this court, on its former appearance to have occurred.
Upon the return of the remittitur to the trial court, the defendant amended the answer and attempted to set up the defense that the subcontractor was not entitled to be paid any amount, and hence his order that a sum that would be due him from the retention fee and final payment be made payable to him and the plaintiff jointly, though accepted by the defendant, created no liability on the part of the latter. The amendment set up an issuable defense to the plaintiff's action upon the performance of his contract.
The burden of proof was on the plaintiff to prove his case as laid in the petition. He did prove a prima facie right to recover the sum sued for by adducing evidence that the order of Penuel to make the final payment and retention fee of $11,698.20 payable to Penuel and the plaintiff jointly was accepted by the defendant, who refused to make the final payment to Penuel and the plaintiff as stipulated in the order and acceptance.
When the plaintiff carried the burden of proving his case as alleged in the petition, the burden of evidence shifted to the defendant to establish a valid defense. The defenses upon which the defendant relied was a general denial of the material allegations of the petition contained in the answer as originally drawn, and the defense set up in the amendment.
The defendant's evidence admissible in setting up its defense showed that, after certain legitimate deductions, the amount of the "ten percent retention and final payment" under the contract between Penuel and the defendant was $11,698.20, that $11,144.86 was paid Penuel for materials used by him in carrying out his contract connected with the construction of a certain warehouse for General Warehouse, Inc., which construction was undertaken by the defendant as prime contractor and Penuel as the subcontractor; that Penuel owed a concern known as D. & B. Fabricators $15,000 for these materials; that the payment to Penuel was made in the presence of the Fabricator concern's representative; that the check for the same was immediately endorsed by Penuel and turned over to him; that, unless the D. & B. Fabricator's debt had been satisfied, the defendant would have become liable for the amount of the same. This left a balance of the D. & B. Fabricators demand for such materials amounting to about $4,000 for which the defendant would likewise have become liable had not that concern agreed to forego its right to enforce the same against the defendant. Thus the defendant's evidence completely overcame that of the plaintiff and proved without conflict that the subcontractor was not entitled to any part of the ten percent retention and final payment, and that the acceptance of Penuel's order to pay the amount that would be due him from such fund created no liability on the defendant's part.
It follows that the trial judge did not err in directing a verdict for the defendant, and ruled correctly in denying the plaintiff's motion for judgment notwithstanding the verdict.
3. Ground 1 of the amended motion for new trial excepts to the admission of evidence submitted by the defendant for the purpose of showing it had no knowledge that the plaintiff would loan money to Penuel relying upon its promise expressed in the acceptance of Penuel's order. The evidence was not particularly related to the issues made by the pleadings, for as we have held the only question to be determined was whether the defendant complied with the acceptance according to its tenor. However, the plaintiff had no cause to complain that the evidence was admitted because he had previously introduced evidence concerning the same matter, and the defendant's evidence was merely in rebuttal to that he had offered. The answer was responsive to the question propounded by the plaintiff's counsel. He asked the witness under what circumstances the agent of the defendant signed the acceptance, and the witness's answer simply related some of the circumstances under which the acceptance was executed.
4. Ground 2 of the amended motion complains that the defendant's manager, was permitted to testify: "A. To further explain my answer, we did forestall legal action by issuing a number of papers that their bill would be satisfied prior to final payment and, on that assurance only, we were able to keep the job from having a number of liens placed against it." The objection interposed was that the witness's testimony was mere conjecture and speculative as to what other people would do under given conditions. Mutual Benefit Health &c. Assn. v. Bell, 49 Ga. App. 640, 652 (176 S. E. 124), is the pronouncement of the sound rule of evidence that a witness will not be permitted to testify as to what another would do under given conditions or in certain circumstances. The testimony was inadmissible and should have been excluded. However, while the evidence was inadmissible, it was not material to the defense interposed, in fact, added no fact that had any legal effect. The defendant proved a complete defense to the plaintiff's alleged cause, and a verdict in its favor was demanded, without the aid of the testimony erroneously admitted.
5. Ground 3 of the amended motion complains of testimony obviously hearsay, but admissible under Code 38-302 to explain the defendant's conduct.
6. Ground 4 of the amended motion complains that certain evidence was admitted over the plaintiff's objection. A part of the evidence referred to was not subject to the objection interposed, hence the ground shows no error.
7. Grounds 6, 8, and 11 of the amended motion assign error on the admission of evidence which in various forms supports the contention of the defendant that the subcontractor Penuel was not entitled to be paid the retention fee or final payment under his contract with the defendant, for the reason that it was necessary to apply the amount of the retention fees to the payment of debts for labor and material incurred by Penuel in carrying out the contract, and for which the defendant would be liable. The grounds are, under the ruling we have made in disposing of the general grounds of the motion for new trial, without merit.
8. Grounds 5, 7, 9 and 10 complain of the admission of evidence tending to show that the defendant was liable for the payment of charges for labor and materials contracted for by the subcontractor and the duty of the subcontractor to satisfy such demands in order to be entitled to final payment under the contract between him and the defendant. Under the rulings previously made in this opinion the grounds are without merit.
9. Ground 12 complains of the admission of evidence obviously irrelevant and inadmissible. The evidence had no probative value and was not of a nature prejudicial to the plaintiff's cause. The ground shows harmless error.
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs in the judgment.
Fullbright & Duffey, Henry J. Fullbright, Jr., Maddox & Maddox, James Maddox, contra.
Wright, Rogers, Magruder & Hoyt, Clinton J. Morgan, for plaintiff in error.
DECIDED JANUARY 9, 1959 -- REHEARING DENIED JANUARY 23, 1959.
Saturday May 23 00:59 EDT


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