Bull & Son v. Carpenter

124 S.E. 381, 32 Ga. App. 637, 1924 Ga. App. LEXIS 570

• Court: Court of Appeals of Georgia
• Decided: September 19, 1924
• Docket: 14261
• Status: Published

Opinion

Jenkins, P. J.

This was a suit brought by a firm of attorneys against a trustee for a sum claimed to be due for legal services, under an express oral contract alleged to have been made by a predecessor in office of the defendant trustee. In addition to their own evidence in support of their claim, the plaintiffs offered the interrogatories of the former trustee, testifying positively that he had employed the plaintiffs and made a contract with them to represent him as trustee, and that they had successfully represented the trust estate. The defendant, however, offered in rebuttal the depositions of this same former trustee, taken subsequently to his interrogatories, in which he affirmatively denied the making of any contract as trustee or for the trust estate with the plaintiffs, swore that he had contracted solely as an individual for the representation only of his individual interest, which was involved, and made no explanation of his conflicting testimony contained in the interrogatories sued out by the plaintiffs.

As we first conceived the case, it would be controlled by an answer to the following question certified to the Supreme Court: “Where a suit is brought against a trustee for a sum alleged to be due for legal services under and by virtue of an express oral contract alleged to have been made with a predecessor in office of the defendant trustee, and where, in support of his own evidence that such contract was made, the plaintiff introduces the interrogatories of the former trustee, by which the making of the alleged contract is corroborated, but the defendant, the present trustee, introduces in rebuttal depositions of the same former trustee, taken subsequently to his interrogatories,' in which depositions he affirmatively denies the making of the contract sued on, but without any explanation of, his conflicting testimony as contained in the interrogatories sued out by the plaintiff, and where there are no other facts or circumstances in evidence supporting a verdict rendered in favor of the defendant, must the verdict be set aside as being ‘without evidence to support it and contrary to law/ on the theory that it is necessarily based solely upon the evidence of a witness who has knowingly and wilfully testified falsely to a leading and material fact respecting which there could be no mistake or misapprehension?” 158 Ga. 360. See Glenn v. Augusta Ry. Co., 121 Ga. 80, 82 (48 S. E. 684); Plummer v. State, 111 Ga. 839 (1, 2) (36 S. E. 233); Pierce v. State, 53 Ga. 365 (1), 368; Pope v. State, 150 Ga. 703 (4), 705 (105 S. E. 296); Garland v. State, 124 Ga. 832 (3), 835 (53 S. E. 314); Williams v. State, 69 Ga. 1, 34 (28); Cen. of Ga. Ry. Co. v. Mote, 131 Ga. 166 (8) (62 S. E. 164) Payne v. Reese, 28 Ga. App. 180, 181 (110 S. E. 740); Haverty Furniture Co. v. Calhoun, 15 Ga. App. 620 (1), 621 (84 S. E. 138); Ford v. State, 13 Ga. App. 68, 69 (78 S. E. 782). Upon further examination of the record, however, and after the filing of additional briefs, we do not think it necessary to determine the question we have just indicated. We find that the evidence of the witness referred to as given in his depositions for the defendant was to an extent corroborated by the evidence of the subsequent trustee against whom the suit was brought. The latter testified: “It was my understanding that J. J. Bull & Son (plaintiffs) represented J. C. Parker (the former trustee) in the suit to recover his individual part of the estate, and carried the case to the Supreme Court and lost the ease.” See Parker v. Parker, 147 Ga. 432 (94 S. E. 543). The contention of the defendant was that the representation and the services of the plaintiffs to the former trustee were solely for his individual interest and in his individual capacity. While hearsay evidence will not support a verdict, or afford corroboration of a witness who has testified wilfully and knowingly falsely, under section 5884 of the Civil Code (1910), the language of the witness that it was his “understanding” as to certain facts, otherwise positively stated, cannot be rejected as hearsay, but, without further explanation, will be taken as resting upon actual facts within the personal knowledge of the witness. Such a statement could have been tested on cross-examination, and, in the absence of any modification or explanation on further examination, or any exception after timely objection to such evidence, cannot be disregarded. “A verdict which is entirely without any evidence to support it is contrary to law, but a verdict based upon secondary evidence introduced without any objection may be valid, and the same is true where the verdict rests upon sufficient testimony possessing probative value, even though such testimony would not have been competent if a timely and appropriate objection had been made at the trial.” Ga. Coast &c. R. Co. v. Herrington, 14 Ga. App. 539 (2) (81 S. E. 814). “An opinionative statement of a witness, even though it be a conclusion unsupported by such facts as are necessary” to show its correctness, “where no objection is urged thereto upon the trial, cannot be challenged for the first time upon review, as incompetent and insufficient.” Hutchinson v. State, 8 Ga. App. 684 (1), 685 (70 S. E. 63).

Judgment affirmed.

Stephens and Bell, JJ., concur.