{
  "id": 8552289,
  "name": "ERNEST ELSEVIER v. GANN MACHINE SHOP, INC., and J. R. GANN, Individually",
  "name_abbreviation": "Elsevier v. Gann Machine Shop, Inc.",
  "decision_date": "1970-10-21",
  "docket_number": "No. 7014DC535",
  "first_page": "539",
  "last_page": "543",
  "citations": [
    {
      "type": "official",
      "cite": "9 N.C. App. 539"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "145 S.E. 2d 363",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "266 N.C. 1",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559506
      ],
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nc/266/0001-01"
      ]
    },
    {
      "cite": "149 S.E. 2d 579",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1966,
      "opinion_index": 0
    },
    {
      "cite": "268 N.C. 33",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560057
      ],
      "year": 1966,
      "opinion_index": 0,
      "case_paths": [
        "/nc/268/0033-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 463,
    "char_count": 10264,
    "ocr_confidence": 0.489,
    "pagerank": {
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      "percentile": 0.35668392249895653
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    "sha256": "d5b3ef92a9d04f489defa06aba31e752e3eae6dc42422dbda6cf10167b34ffca",
    "simhash": "1:166a34080b23ca7a",
    "word_count": 1712
  },
  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Brock and Hedrick concur."
    ],
    "parties": [
      "ERNEST ELSEVIER v. GANN MACHINE SHOP, INC., and J. R. GANN, Individually"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nThe 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).\nThe only question presented by this appeal is whether the trial court committed error in failing to allow the defendants\u2019 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.\nThe general rule with respect to opinion evidence relating to the value of services rendered is stated in Stansbury, N. C. Evidence 2d, \u00a7 128, as follows:\n\u201cA 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. * * * \u201d\nThe 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.\nThe 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 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: \u201cWe paid $2,000.00 too much.\u201d 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\u2019s answer that the services were worth $1,500.\nThe 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.\nThe 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\u2019s 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.\nOrdinarily, 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\u2019s services was prejudicial in this case.\nIn trial we find no prejudicial error.\nJudges Brock and Hedrick concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Arthur Vann for plaintiff appellee.",
      "Lillard H. Mount, Richard M. Hutson II, and Edwin K. Walker, Jr., for defendants appellants."
    ],
    "corrections": "",
    "head_matter": "ERNEST ELSEVIER v. GANN MACHINE SHOP, INC., and J. R. GANN, Individually\nNo. 7014DC535\n(Filed 21 October 1970)\n1. Appeal and Error \u00a7 31\u2014 review of the charge \u2014 failure to make exceptions\nWhen 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.\n2. Evidence \u00a7 45\u2014 action for services rendered \u2014 value of services \u2014 admissibility of opinion evidence\nIn an action by a professional engineer to recover $4,000 allegedly due him for services rendered to the individual defendants in the preparation and construction of their industrial building, there was no error in the exclusion of one defendant\u2019s opinion testimony as to the value of the services performed by the professional engineer, where (1) the defendant admitted in his answer that he had assured the plaintiff that his bill for services rendered would be paid and (2) the defendant failed to show that he had any knowledge gained from experience or observation on which to base an opinion as to the value' of the services.\nAppeal by defendants from Lee, District Court Judge, 19 March 1970 Session of District Court held in Durham County.\nPlaintiff\u2019s action was for the recovery of $4,000 alleged to be the balance due him for professional engineering services rendered defendants in the preparation of plans and specifications for the construction of a new industrial building and in the construction thereof.\nDefendants by their answer denied owing plaintiff any sum. However, paragraph nine of the original complaint reads:\n\u201c9. That thereafter, the plaintiff, in the month of October of 1966, went to the office of the defendant corporation and there had a discussion with certain officers and agents of the defendant corporation, who acknowledged the receipt of the plaintiff\u2019s statement for services rendered and assured the plaintiff that this would be paid and that the plaintiff would start receiving a One Thousand Dollars ($1,000.00) check commencing in February of 1967 and a check each month thereafter in the amount of One Thousand Dollars ($1,000.00) until the full Six Thousand Dollars ($6,000.00) was paid.\u201d\nAfter the defendant Gann Machine Shop, Inc. (corporate defendant), answered the original complaint denying that it owed the plaintiff any sum, J. R. Gann (individual defendant) was made an additional party defendant, and without objection, on 6 August 1969 the complaint was amended. Paragraph nine was amended by adding thereto the following:\n\u201cThat the said J. R. Gann, individually, assured the plaintiff that the plaintiff\u2019s bill for services rendered in the amount of Six Thousand Dollars ($6,000.00) would be paid and that the plaintiff would receive One Thousand Dollars ($1,000.00) per month beginning in February of 1967 and a like payment each month thereafter until the total amount was paid.\u201d\nOn 29 September 1969 the individual defendant answered paragraph nine of the amended complaint as follows:\n\u201c(9) The allegations contained in Paragraph 9 of the Amended Complaint are admitted.\u201d\nPlaintiff\u2019s evidence tended to show that he is a registered professional engineer; that in 1966 he designed a new machine shop building for the defendants; that the building was a 25,000-square-foot building, and the individual defendant told the plaintiff it would cost from $200,000 to $250,000 to construct it; that he spent from three hundred to three hundred and fifty hours in preparing the design; that the building was completed toward the end of the summer of 1966; that the individual defendant is the president of the corporate defendant; that in late August or September 1966 plaintiff sent defendants a bill for $6,000 which was a fair and reasonable amount for the services rendered; that the individual defendant told plaintiff in October 1966 that he had over-extended himself but promised to pay him the $6,000 at the rate of $1,000 per month until the entire amount was paid; that nothing was paid until October 1967 when the individual defendant paid him $1,000 and paid him another thousand dollars in November 1967; that in March 1968 the individual defendant informed him that he was not going to pay the remaining $4,000; and that the defendants are indebted to him in the sum of $4,000.\nDefendants offered the individual defendant as a witness, and he testified on direct examination:\n\u201cI did consult with Mr. Elsevier and he never told me what fee he would charge for planning a new building. I have built some buildings and a motel of precast concrete construction and am familiar with services performed by Mr. Elsevier. We used a precast concrete roof designed by N. C. Products in Raleigh. The cost of the building was approximately $132,000.00. N. C. Products prepared all of the plans for the precast concrete roof and columns and installed them.\u201d\nThe testimony of the defendants\u2019 witnesses Eugene D. Johnson (Johnson) and Thomas Kelley tended to show that when plaintiff was first contacted, no discussion was had concerning his fee and that the actual cost of the building was $132,150.99.\nFrom a jury verdict and judgment entered thereon that the plaintiff recover of the defendants the sum of $4,000, the defendants appealed.\nArthur Vann for plaintiff appellee.\nLillard H. Mount, Richard M. Hutson II, and Edwin K. Walker, Jr., for defendants appellants."
  },
  "file_name": "0539-01",
  "first_page_order": 563,
  "last_page_order": 567
}
