Beane v. Nelson

• Decision Date: 24 February 1941
• Docket Number: No. 28672.,28672.
• Citation: 13 S.E.2d 694
• Court: Georgia Court of Appeals
• Parties: FENNER & BEANE. v. NELSON.

13 S.E.2d 694

FENNER & BEANE.

v.NELSON.

No. 28672.

Court of Appeals of Georgia, Division No. 2.

Feb. 24, 1941.

Rehearing Denied March 26, 1941.

Error from Superior Court, Fulton County; Paul S. Etheridge, Judge.

Suit by Fenner & Beane, a partnership, against H. B. Nelson to recover amount due on account. To review a judgment directing a verdict for defendant, the plaintiff brings error.

Affirmed.

Powell, Goldstein, Frazer & Murphy, of Atlanta, for plaintiff in error.

James A. Branch and Thos. B. Branch, Jr., both of Atlanta, for defendant in error.

SUTTON, Judge.

Fenner & Beane, a partnership composed of twenty-nine named members, filed suit against H. B. Nelson, alleging that the partnership was a continuation of and successor to the partnership of Fenner, Beane & Ungerleider, which was engaged in the stock brokerage business during the year 1933; that during the month of March, 1933, the defendant opened a brokerage account with Fenner, Beane & Ungerleider, which was accepted by it, a copy of the contract being attached to the petition as "Exhibit A" and made a part thereof; that the defendant gave orders for the purchase and sale of various stocks, an itemized confirmation of all of which being furnished him in every instance by the partnership; that on July 20, 1933, the defendant was indebted to it, the plaintiff's predecessor, in the sum of $99,525.16 on account of monies advanced by Fenner, Beane & Ungerleider in the purchase of various stocks for his account; that on July 21, 1933, Fenner, Beane & Ungerleider, at the request of the defendant, sold all stocks which were being carried for him and received as the proceeds thereof the sum of $80,739, leaving a deficit of $18,787.16 due by the defendant as shown by an itemized statement from Fenner, Beane & Ungerleider attached to the petition; that there was due the defendant the sum of $30 as a dividend on 300 shares of General Electric stock, which accrued June 30, 1933, leaving the net amount due Fenner, Beane & Ungerleider $18,757.16; that the defendant was due the partnership on July 24, 1933, the sum of $115.23 as interest and will continue to be indebted to the plaintiff for interest at 7 per cent. per annum from that date until the date of judgment on the principal amount due; that the defendant, on July 26, 1933, admitted in writing the correctness of the account with the exception of the amount of $30 credited as dividend, a copy of said writing being attached to the petition; that demand has been made upon the defendant for payment of said account, but that he has refused to pay the same; that the plaintiff, the partnership of Fenner & Beane, composed of the named members, is the successor in title to all the rights, title, and interest of the partnership of Fenner, Beane & Ungerleider, the said partnership continuing as it existed in 1933 with the exception of Mr. Ungerleider, who retired, and the addition of other members, and that the said partnership each registered their respective partnership trade-names as required by law. Judgment was prayed for the principal amount of the account, interest, and costs.

The defendant filed an answer denying the substantial allegations of the petition, and by amendment set up that the plaintiff partnership was not entitled to recover upon the alleged cause of action in that the account sued on was an illegal and gambling transaction, and that Fenner, Beane & Ungerleider was estopped and not entitled to recover against him because, while acting in a confidential and fiduciary capacity as brokers, that partnership gave him incorrect and inaccurate information as to the status of his account on which he relied and acted to his injury and damage.

The evidence adduced on the trial of the case was substantially as follows: During the year 1933 Nelson traded with a stock brokerage firm, Fenner, Beane & Ungerleider, which, on account of subsequent operations in the same name, after changes in personnel, will be referred to hereinafter as Fenner, Beane & Ungerleider(l). This partnership was composed of more than twenty members. On September 14, 1933, there was a purported or intended admission of a new member, Hoyle Jones, into the partnership. Business continued in the same name, which entity will hereinafter be referred to as Fenner, Beane & Ungerleider(2). On October 21, 1933, under the terms of a written agreement between the members composing the partnership of Fenner, Beane & Ungerleider(2), including Hoyle Jones, two of the partners, Samuel Ungerleider and Abe Ungerleider, retired as members, effective as of October 31, 1933. The surviving partners continued to do a stock brokerage business under the former name, hereinafter referred to as Fenner, Beane & Ungerleider(3). Subsequently there were admissions and withdrawals as to personnel until the business became conducted as Fenner & Beane, and it was the latter-named entity which, on April 21, 1937, filed the present suit against the defendant H. B. Nelson. There was evidence as to various transactions between Nelson and Fenner, Beane & Ungerleider (1) in 1933, resulting in a balance of $18,-787.16 against him as shown by the itemized statement introduced in evidence, this account developing under his customer's contract as entered into on March 16, 1933 with the original partnership, a copy of which was introduced in evidence. Nelson gave certain testimony, the purport of which was to show that because of certain conduct on the part of Fenner, Beane & Ungerleider(l) he was injured and damaged by that partnership in its improper handling or failing to properly handle his account on a declining market, in consequence of which he contended, in effect, that he was not liable for the full amount claimed by Fenner, Beane & Ungerleider (1), and he also asserted, about which the evidence was in conflict, that the transactions were of an illegal and gambling nature, in that no actual delivery of stocks was ever intended between the parties. Other evidence, not deemed necessary to be set out for a decision of the case, was introduced.

After the conclusion of the introduction of evidence by both sides counsel for the defendant moved for a directed verdict on the ground, among others, that the plaintiff did not show any right to recover, inasmuch as the transactions were had with the old partnership of Fenner, Beane & Ungerleider(l), as constituted on July 20, 1933, which had been dissolved, and that there was no evidence that the assets of that partnership or its right of action against Nelson had ever passed to Fenner & Beane. Thereupon the plaintiff offered an amendment naming the surviving partners of Fenner, Beane & Ungerleider(l) as plaintiff, suing for the use of Fenner & Beane, which the court disallowed. Counsel for the plaintiff stated to the court that the judgment should be in the nature of a nonsuit, if the court was disposed to direct a verdict, but, upon a renewed motion of counsel for the defendant, the court ruled that the plaintiff was not entitled to recover and directed a verdict for the defendant. The plaintiff filed exceptions pendente lite to the judgment of the court disallowing the proffered amendment and also to the judgment of the court in refusing to enter a judgment of nonsuit and instead directing a verdict for the defendant. The plaintiff filed a motion for new trial on the general grounds and by amendment added several special grounds hereinafter dealt with. The court overruled the motion for new trial and the plaintiff excepted, assigning error thereon in the bill of exceptions and also assigning error on the rulings of the court as excepted to by exceptions pendente lite.

1. In this court the plaintiff in error filed an amendment to its bill of exceptions by making more specific reference to an amendment which the court disallowed and which is referred to in the foregoing statement. While an exact copy of the amendment is not attached to the bill of exceptions or set out verbatim therein, what purports to be the substance of the amendment is stated in the amendment to the bill of exceptions and is sufficient to enable this court to ascertain the question of law which is raised by the filing of exceptions pendente lite to the disallowance of the amendment in the trial court, the substance of the amendment being set out in the exceptions pendente lite, and on which exceptions pendente lite error is assigned in the bill of exceptions. The amendment to the bill of exceptions in the respect named is accordingly allowed. See in this connection Walker v. Equitable Mortgage Co., 114 Ga. 862(7), 40 S.E. 1010; Thomas & McCafferty v. Siesel, 2 Ga.App. 663(2), 58 S.E. 1131.

2. Special grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the motion for new trial may properly be considered in connection with the general grounds. They complain, in brief, that the direction of a verdict was error for the reasons (1) that the issues should have been submitted to a jury; (2) that the evidence authorized a finding in some amount for the plaintiff; (3) that the court erred in ruling that the plaintiff did not have title to the cause of action; (4) that the trial judge erred in ruling that a change in the personnel worked a dissolution of the partnership of Fenner, Beane & Ungerlcider(l) and that no right was shown in Fenner & Beane to the cause of action sued on, whereas the evidence showed a continuing partnership with the right of Fenner & Beane to bring the suit; (5) that the evidence sustained all of the allegations of the petition and even the defendant's testimony raised only a question as to what amount should be awarded by a jury to the plaintiff; (6) that the evidence established that the plaintiff partnership was a continuing partnership and successor to the rights of Fenner, Beane & Ungerleider as that partnership existed on July 20, 1933; (7) that as all evidence relating to changes in the partnership appeared exclusively from the plaintiff's evidence,...