Ameagle Contractors, Inc. v. Couch Construction Co.

Bell, Chief Judge. Plaintiff sued on open account for failure to pay for a quantity of asphalt. The defendant pleaded failure of consideration. The jury returned a verdict for plaintiff and a judgment was entered. Held: 1. The trial court, after objection by plaintiff, refused to permit defendant’s witness, another supplier of asphalt, to answer questions concerning his payment experience with defendant and whether the witness was generally familiar with Department of Transportation’s specifications for mixes for state use roads. It was not shown how an answer to these questions would bear either directly or indirectly on any issue being tried by the jury. Consequently, these answers to irrelevant questions were properly excluded. Code § 38-201. 2. Defendant made no exceptions or objections to the court’s charge to the jury and submitted no request to charge. Therefore, all enumerations relating to the court’s charge and failure to charge raise no issues for appellate decision. Code § 70-207 (a). 3. The defendant’s president, while testifying as a witness, admitted receiving the asphalt from plaintiff and not paying for it. The whole thrust of defendant’s evidence was that the asphalt as delivered by plaintiff was defective and therefore there was a failure of consideration. The jury as it was authorized to do by the evidence, found against defendant. All other enumerations of error were either harmless or have no merit. Judgment affirmed. McMurray and Smith, JJ., concur. Submitted May 23, 1977 Decided September 7, 1977. Green & Butler, William O. Green, Jr., William B. Cherry, Jr., for appellant. Smith & Hamrick, Dewey Smith, for appellee.