*1 pleaded would have constituted a valid defense properly which up action, the courts will consider the case a cause of set been amended. though pleadings had an ad- Though defective contained the answer was pleaded, the could have contrary the defense admission mission parties proceeded with amendment; and when all been stricken having well case, treating pleaded the answer as trial of the submitting de- defense, offering plaintiff objection being thereto, and the fense, no defense, after the case submitted to to combat verdict, it for jury and after the returned a was too late complain plaintiff conflict in the averments Locke, Irvin v. Felton, Nichols, J., C. concur. Administrator, et al. v. ATHENS LUMBER SAYE, 36153.
CO., INC. Rehearing May 9, 1956 Decided denied June Rupert error. Brown, G. A. Hawkins, Vane Bentley Griffin, Fortson, Stephens, Robert G. Stephens, Jr., contra. J. On the first of this case before this
Nichols, it was held that the court evidence demanded a verdict *2 property lien on Mrs. Burton’s in the full amount the claim against overruling the contractor and the that trial court erred in the plaintiff’s motion for new
On second trial property the her owner amended allege answer so as a paid to defense that she had full con- price tract deceased contractor, to now that had applied money to outstanding by materialmen, claims laborers and that therefore she liable any was not to whatever. permitted This defense is ofAct (Ga. 67-2002). 1941, p. 345; Code, L. Ann. Supp., § except presented The evidence, in an effort support to amendment property to defendant answer, owner’s was sub- stantially the same trial on the second as was the first trial. Therefore, property if the defendant owner’s amended answer supported by presented was not evidence trial, on the second law then it is the case that the verdict of the demanded. only support offered property defendant amended answer
owner’s was the statement made the administrator of the contractor’s estate when asked did money paid him under to the contract: “He his material bill, bill, anything his labor pertaining I to as knew.” question phrase
There can be no “as far I knew” been added had not this answer then the to defendant plea that the contractor had money paid owner’s used the himto apply outstanding claims laborers and materialmen supported by have been evidence, some however, since this added phrase analysis to his answer an of this statement must be made in determine order to what facts this witness testi- fied to. phrase as used this witness was an attempt qualify compensate his answer
apparent so as part lack disposition on his as to what was made of money allegedly paid to Had this the deceased contractor. money known pay was used to laborers and mate- qualify had to and on answer,
rialmen not have then would money had the other hand if this witness had known that this purpose been used for then could not have answered pay was used and materialmen as laborers he knew. the answer this witness shows complete part disposition lack of on his as to what any money paid made of contractor and deceased could plea not under circumstances pay was used and materialmen. Since laborers plea supported by was not the law of the case evidence it is demanded defendant.property subject lien, owner was to the materialman’s questions presented the other motion for new trial overruling need be considered. The err in trial court did not the defendants’ motion for new trial. Felton, C. concurs. Quillian, J., con- *3 specially.,
curs Rei-ieaeing.
On Motion foe plaintiffs in error contend in rehearing their motion for language that the as when added to the answer given by the administrator and discussed in the body opin of this ion should not qualifying be taken as his In of their they contention cite cases where language this or language other similar used by was a witness and it not was construed qualifying as discrediting given. the answer so Bar rington v. Davis Sons, (162 Jenkins & 44 App. (4) Ga. 682 E.S. 642); Aetna Insurance Co. Trimmier, App. (157 v. 42 (2) Ga. 745 E. 340); S. Carter App. (28 v. Ray, (5) 70 Ga. 419 361); S. E. 2d Turner v. Hardy, (32 642 S. E. 2d 483); Saliba v. Saliba, Ga. 791, Barrington
In v. Davis Sons, supra, Jenkins the witness stated being the account sued on was correct as knew. testifying The witness was the husband of the defendant/ He had ordered all the making up items on, account sued payments had all the made on the account. must ma.de certainly be inferred had knowledge this witness of whether s wa or not. In Aetna account correct Insurance Co. v. rec Trimmier, best his supra, the testified that or three moved from his house two weeks ollection a tenant of his had imply certainly before a This would fire occurred. he was tenant inasmuch knowledge when the moved as supra, In v. a witness while Ray, the landlord. Carter piece testified respect with to a certain described just an out thought building a certain located thereon was building it. property, on the that was what he considered had a Again this case it was shown Hardy, v. Su supra, what he testified about. In Turner preme Court said, “Where witness testifies to conclusion testimony is fact be within his and such which could objection, admitted without cannot be attacked review being incompetent In v. Saliba, supra, or insufficient.” Saliba “Moreover, testify truthfully can never said, a witness any past connected, except he was transaction with which his recollection.” follow that before a witness must testify can knows there to his best recollection as he that he was connected with the transaction about must shown purports testify. present which he In the case the witness estate, alone the administrator of deceased brother’s any opportunity would show that he had any particular money paid his brother did with him while he partner was alive. The witness testified that he not a business, his brother’s that he worked as foreman on the contract in question, work, attempted keep laid out the 'accurate carpenter, of the material record worked as a sent met on one occasion he was with brother when he with her husband and discussed Although had been tes amount that show the witness connected with the *4 transaction insofar about the received materials had received under contractor quality quantity done as to the of the work contract, would not inference that he contract, any knowledge disposition his brother made of the of what here, where as to him under the contract. transaction, and his witness testified as to his connection transaction, phases was limited of the connection here, cannot qualified answer as it was be said be assumed that recollection, from his and must testfying from lack recollection. here- judgment of affirmance follows from above tofore rendered was correct. J., concurring specially. troubling question most
Quillian, in plaintiff’s is whether proof delivery case showed of the materials alleged used in were improvement of the property. defendant’s my opinion in phase materially on this of the case different on the trial of the case we now review from that held to be suffi- previous cient on Then case this court. there testimony of Mr. direct one mate- Bondurant that the rials testimony were delivered. His is not contained in the brief of evidence on the latter However, we find in the brief of evidence, included in documentary evidence submitted plaintiff, following:
“Plaintiff’s Exhibit No. Lumber Contract between Athens Company, and R. M. Inc., dated Saye, June terms of lumber company agreed which the to sell certain build- ing materials at and for the $2,464.35, sum of the materials to job delivered at the site the Winterville Road near Winter- Ga-., premises ville, defendant, Mrs. Bur- Sarah Irene ton, being signed the contract Inc., Lumber Company, Athens and M. Saye, R.
“Plaintiff’s 2 consisting Exhibit No. delivery tickets Lumber Company, Inc., job Athens showing deliv- Burton ery of materials Saye by contracted to be M. sold to R. Athens They Lumber Inc. subsequent bear Company, various dates all to the execution the contract referred to as Exhibit Plaintiff’s No. 1.” delivery
There was no slips, but correctness under 38-711 they pur- Code were of the facts § ported having their accuracy to show without verified the tes- witness or who either delivered witnesses the items slips kept referred slips or who the record of them.