Edwards v. Simpson

Deen, Judge. The plaintiffs’ action was on an express oral contract, the allegations being that defendant agreed to do certain work and purchase certain materials for $2,310, and plaintiff agreed to pay for certain other materials and subcontracts in the sum of $1,320; that defendant advised the plaintiff that the net costs for material and labor would not exceed $3,630. Plaintiffs then alleged that "they relied upon the representation made to them by the defendant and told him that they would pay this amount of money to get a good job done, but they did not know that defendant was misrepresenting the facts to them and. did not know at that time that he was misleading and deceiving them.” The measure of damages sought is the amount paid the defendant over the alleged contract price of $3,630 plus the amount necessary to have the work completed by others, these being damages appropriate to a contract but not to one where rescission is sought [46] or damages calculated on the basis of a tortious injury. The pleadings, therefore, do not fall into the category which allows parties charged with fraudulent misconduct in civil actions to defend by showing evidence of good character. See Hannah v. Anderson, 125 Ga. 407 (54 SE 131); Wimberly v. Toney, 175 Ga. 416 (6) (165 SE 257). The plaintiff went further, however, and in his testimony stated of the defendant: "You can’t believe anything he tells you.” This statement, especially in connection with the allegations of deceit and misrepresentation in the petition, put the defendant’s character for veracity in issue. This being so, the general rule is that rebuttal evidence is admissible on the pertinent trait of character in issue, but it should be limited to the trait involved. Stanley v. Willingham, 93 Ga. App. 421 (1, 2) (91 SE2d 791), where it was held that in an action for damages resulting from an assault, where each party claimed he was the victim rather than the aggressor, character evidence was admissible as to the trait involved (peaceableness or violence) but not evidence of general good character. Statements as to general character, as shown by answers to the statutory questions set out in Code § 38-1804, are intended specifically to be used in the impeachment of witnesses for bad character, or, equally to rebut an attempt at impeachment by a showing of good character. See Barnwell v. Hannegan, 105 Ga. 396 (2) (31 SE 116), holding further that where the statutory questions are asked to sustain the character of a witness sought to be impeached by evidence of general bad character, other questions, such as the character of the witness for veracity, may not be asked. In cases not falling into either of these categories, evidence as to character is irrelevant and inadmissible. Code § 38-202; Cannon v. Hunt, 116 Ga. 452 (4) (42 SE 734). Here, the plaintiff put the defendant’s character for veracity in issue by the statement, "You can’t believe anything he tells you” and the defendant was entitled to introduce evidence relating to his veracity. Four witnesses testified: "I have known Mr. R. A. Simpson for several years, his reputation is good in the community where he lives, and I would believe him on his oath.” The testimony has to do both with general character and character for veracity when it should have been limited to the latter alone; nevertheless, it had particular probative value as to the trait involved, and when [47] viewed in the light of the pleadings and evidence, its admission is not ground for reversal. The defendant’s testimony, in support of a pleaded counteraction in the sum of $644, was that he had not contracted with the plaintiff on a job basis but had contracted to work by the hour, materials to be paid for by the plaintiff. He further stated that the defendant owed him more than $644 but that he was willing to settle for $644, and a jury returned a verdict in his favor for this amount. It has been held that the defendant would not be entitled to an amount greater than that sued for. Kytle v. Kytle, 128 Ga. 387 (4) (57 SE 748). But see Jones v. Spindel, 122 Ga. App. 390 (177 SE2d 187). If the jury believed the defendant’s version of the arrangement, there was evidence from which it could have found that there was no agreement beyond that of paying the reasonable value of the work and materials furnished, and that this exceeded the amount received by something more than the amount sued for. Cases decided under the former practice Acts, such as Walter v. Arp, 88 Ga. App. 542 (77 SE2d 82), which hold that one who sues on an express contract cannot recover under a quantum meruit theory, must doubtless be modified in view of Code Ann. § 81A-108 (e) (2) and Code Ann. § 81A-115 (b), in which regard see D. H. Overmyer Co. v. Kapplin, 122 Ga. App. 51 (176 SE2d 207), but whether this is true or not the defendant here is not in the position of one who claims a sum certain under a contract and then seeks to travel on a "reasonable value” theory. Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Quillian and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.