Scott v. Smith

BROCK, Chief Judge.

Defendant contends that the trial court erred in refusing to allow defendant’s motion for a directed verdict at the close of plaintiffs’ evidence and at the close of all of the evidence in that plaintiffs failed to prove substantial compliance with their part of the agreement. Defendant’s contention is based upon the premise that this agreement is a whole contract, and that plaintiffs’ failure to return to the job site to complete the work agreed upon is indicative of nonperformance and lack of readiness to perform.

Plaintiffs proceeded on the theory of a new agreement between the parties which provided for plaintiffs to receive $900.00 and the balance would be held back until defendant called the plaintiffs back to complete the job. The new agreement provided that $900.00 was to be paid to the plaintiffs for work already completed; the balance is payable only when defendant called the plaintiffs back to the site to complete the job.

The differing contentions of the parties presented a valid issue for jury determination. Clearly the jury adopted plaintiffs’ view of the agreement.

Defendant contends the trial court committed error in not allowing testimony of the defendant which would have shown defendant was ready, able and willing to perform his part of the contract upon substantial performance by the plaintiffs. Defendant admits in his brief that the evidence “ . . . corroborates and reenforces . . . earlier testimony.” The testimony was substantially the same as testimony given during direct examination and under cross-examination. Defendant has failed to demonstrate how the exclusion of this testimony was prejudicial in the trial. This assignment of error is overruled.

Defendant also contends the trial court committed error in refusing to allow defendant’s opinion testimony as to the cost of clearing the land following the work done by plaintiffs. Defendant contends the testimony would have shown the detrimental effect of plaintiffs’ work rather than an improvement of the land as plaintiffs have alleged.

Defendant’s opinion was based upon opinions gathered from “three ’dozer people.” Defendant’s testimony was to the effect that these three people viewed his property, and all three “ . . . would rather go in ground that was already standing up, than to take over where they [plaintiffs] quit and cleared.” Defendant had no independent opinion of the before and after value of the land. Defendant’s relation of what “three ’dozer people” said was properly excluded.

Defendant argues that the trial court committed error in its charge to the jury. We have reviewed the court’s instructions to the jury in its entirety, and find the charge fairly states the contentions of the parties and adequately applies the appropriate principles of law. We find no prejudicial error in the charge.

No error.

Judges Parker and Baley concur.