Elsevier v. Gann Machine Shop, Inc.

MALLARD, Chief Judge. The charge of the court is not included in the record on appeal. It was stipulated by counsel that it be omitted. When no exception is taken to the charge and it is not contained in the record on appeal, it is presumed that the court correctly instructed the jury on every principle of law applicable to the facts. Long v. Honeycutt, 268 N.C. 33, 149 S.E. 2d 579 (1966); State v. Hines, 266 N.C. 1, 145 S.E. 2d 363 (1965). The only question presented by this appeal is whether the trial court committed error in failing to allow the defendants’ witnesses Gann and Johnson to give their opinion as to the value of the services performed by the plaintiff. It is not clear whether the questions were asked during the trial or after the jury verdict. The questions objected to and the answers appear for the only time in the record on appeal after the judgment and appeal entries appear. The record does not show that either question was propounded to the witness while he was testifying before the jury. The general rule with respect to opinion evidence relating to the value of services rendered is stated in Stansbury, N. C. Evidence 2d, § 128, as follows: “A witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific real property, personal property, or services. The impossibility of adequately describing the thing to be valued furnishes sufficient reason for admitting value testimony, hence it is not necessary that the witness be an expert; it is enough that he is familiar with the thing upon which he professes to put a value and has such knowledge and experience as to enable him intelligently to place a value on it. * * * ” The witness Gann did not testify that he had an opinion as to the value of the services performed by plaintiff. It was not error to exclude his answer from consideration by the jury. The witness Johnson testified that he had previously helped build buildings and that he was familiar with the services performed by the plaintiff, but he did not testify what part he had previously taken in helping build buildings. There is nothing in the record to indicate that he had any experience with the preparation of plans and specifications or that he was familiar with the value of the services of one who prepares plans and [543] specifications. However, on cross-examination, he revealed his inexperience in the building trade, at least in the City of Durham, by testifying that he did not know until he applied for a building permit that he could not obtain one in the City of Durham without plans and specifications to present to the building inspector. In addition, after stating that he had an opinion as to the value of the services rendered by the plaintiff, he replied that the value was $1,500 and then added: “We paid $2,000.00 too much.” This answer served to confuse his testimony. All the evidence tended to show that plaintiff had been paid only $2,000 for his services. If plaintiff had been paid $2,000 too much, this would indicate that the services were worth $500 less than nothing and would contradict the first part of Johnson’s answer that the services were worth $1,500. The corporate defendant did not answer paragraph nine of the amended complaint and did not object to the submission of the issue of the amount' of the indebtedness, which was the only issue submitted to the jury. The individual defendant admitted in his answer that he had approved the finished plans and design of the new building submitted by plaintiff. The individual defendant also admitted in his answer to paragraph nine of the amended complaint that he had assured the plaintiff that the plaintiff’s bill for services rendered in the amount of $6,000 would be paid. We do not think that the question of the reasonable value of the services rendered by plaintiff arose at the trial, insofar as the individual defendant is concerned. The only question for determination by the jury as to the individual defendant was whether he had paid what he admitted h| promised to pay. Ordinarily, discrepancies in the testimony of a witness are to be resolved by the jury. However, the evidence in this case does not reveal that the witness Johnson had any knowledge gained from experience, information or observation concerning the value of services of a professional engineer for preparing plans and specifications for construction of a new industrial building. When the circumstances in this case are tested by the rule that the burden is on the appellant to show prejudicial error, we do not think that the exclusion from the consideration of the jury of the expressed opinion of the witness Johnson as to the value of plaintiff’s services was prejudicial in this case. In trial we find no prejudicial error. Judges Brock and Hedrick concur.