Bigelow-Sanford Carpet Co. v. Goodroe
| Decision Date | 22 September 1958 |
| Docket Number | Nos. 1,No. 37150,BIGELOW-SANFORD,2,37150,s. 1 |
| Citation | 106 S.E.2d 45,98 Ga.App. 394 |
| Parties | CARPET COMPANY, Inc. v. Charles GOODROE et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The motion to dismiss the writ of error is denied, and the motion to amend the bill of exceptions by adding a party defendant in error thereto is granted.
2. A motion to strike a paragraph of a pleading alleging damages is a proper and permissible method of raising the question of whether such damages are recoverable.
3. Where the allegations of the answer and cross-action fail to show that the defendants took any steps to reduce or minimize their damages alleged to have resulted from the breach of a contract, such damages in the nature of lost profits and diminished worth of a manufacturing business alleged to have been caused to shut down as a result of the plaintiff's breach of the contract are not recoverable, and the paragraph of the cross-action setting out those damages was subject to an oral motion to strike.
4. Damages on account of the loss of earning power, credit, and for hurt, chagrin, dismay and inconvenience and on account of the injury to the defendants' reputation as a result of the deterioration of their credit rating were too remote and were not recoverable under the allegations of the cross-action in this case. (a) 'Exemplary damages can never be allowed in cases arising on contract.' Code, § 20-1405 5, 6. Expenses of litigation and attorney's fees are recoverable only in cases where other elements of damage are recoverable. Since none of the elements of special damage alleged in the cross-action were recoverable, the trial court erred in overruling the motion to strike the paragraph seeking to recover attorney's fees. However, the cross-action was not subject to dismissal until the defendant had been afforded an opportunity to amend to supply these defects.
Troutman, Sams, Schroder & Lockerman, Tench C. Coxe, William H. Schroder, Kelley & Mobley, Atlanta, Hardin, McCamy & Minor, Dalton, for plaintiff in error.
Dudley B. Magruder, Jr., Rome, D. W. Mitchell, Dalton, Nolan B. Harmon, Atlanta, for defendants in error.
This case began when Bigelow-Sanford Carpet Company, Inc., doing business as Hartford Rayon Company, filed suit against Charles Goodroe and Eleanor M. Goodroe, individually, and as trustee for Charlotte Goodroe, and as trustee for Stanley Goodroe, individually, and doing business as Laura Yarn Mills and/or Laura Mills, on an open account for $89,682.45 worth of yarn alleged to have been shipped to the defendants. Pending that suit, the defendants were placed in involuntary bankruptcy by the plaintiff and the original petition was dismissed. In the meantime, the defendants filed an answer and a cross-action against the plaintiff. Thereafter, the plaintiff made oral motions to strike certain paragraphs of the cross-action which alleged the damages claimed by the defendants and made an oral motion to dismiss the petition, and also filed a general demurrer to the cross-action. The trial court overruled the oral motions to strike the separate paragraphs, overruled the motion to dismiss and overruled the general demurrer to the cross-action, and the exception here is to that judgment.
In the cross-action, the defendants alleged that on or about November 15, 1956, they were indebted to the plaintiff in the sum of $142,790.65 for merchandise purchased from the plaintiff, and of that amount $78,814.40 was due on said date; that on that date a representative of the plaintiff met with the defendant Charles Goodroe and entered into an agreement, the substance of which was that the plaintiff promised to ship and sell to the defendants 50,000 pounds of Hartford rayon staple per week, and that the defendants agreed to accept and purchase the staple and to manufacture it into Hartford rayon yarn exclusively at their mill and to pay for said staple at the specified price per pound; that as a part of the agreement, the plaintiff promised not to being legal action against the defendants on the indebtedness until January 1, 1957, and not to bring it at that time if the defendants' account with the plaintiff was current, and defendants promised to have said account current by that date; that as a part of the agreement, the defendants agreed to convert their mill at Villa Rica, Georgia, to rayon production rather than cotton, and they alleged that they did convert the mill at an expense of $23,000; that the defendants made financial arrangements for financing their business and bringing their account with the plaintiff to a current status and made arrangements to obtain the necessary funds; that notwithstanding the agreement and burden placed upon the defendants under the arrangement, the plaintiff refused to make the shipments of raw material as agreed, its representative stating in response to inquiry by Charles Goodroe that the reason for their failure to ship was a shortage of materials, which statement was false and known to be false by the said representative of the plaintiff; that this failure to supply the defendants with the agreed quantity of rayon staple forced the defendants to close down their mill at Douglasville, Georgia, and it was thereby rendered impossible for them to perform their obligation to bring their account with the plaintiff to a current status, which fact was well known to the plaintiff's agent and employees when they refused to ship said rayon staple; that on January 8, 1957, the plaintiff instituted this action and thereafter filed proceedings in the United States District Court of the Northern District of Georgia forcing the defendants into involuntary bankruptcy.
The defendants alleged (par. 24) that before the plaintiff caused their mills to be shut down, the mills were running at a net profit of approximately $3,000 per month and capable of running at a profit of approximately $8,000 per month, and that they have been deprived of the earnings of the mills since they were shut down; that (par. 25) the mill business in Douglasville was reasonably worth $125,000 before it was shut down, but only worth $70,000 afterwards, and that the mill business in Villa Rica was reasonably worth $140,000, but worth not more than $100,000 after it was shut down; that (par. 26) defendants were forced by the plaintiff into a financial position where they were unable to pay their debts; that their earning power has been destroyed; their credit reputation damaged to the extent that they are unable to borrow money all to the extreme hurt, chagrin, dismay and inconvenience or the defendants and that the general reputation of the defendants has been grieviously damaged by the acts of the plaintiff and that they are entitled to recover compensatory damages in the amount of $25,000 each; that (par. 27) by reason of the unlawful conduct of the plaintiff and the dismay and inconvenience which it caused the defendants to suffer, the defendants should be awarded punitive damages in the amount of $50,000, and (par. 28) that by reason of the bad faith of the plaintiff, the defendants have been forced to employ the services of an attorney and they asked that they be awarded reasonable attorney's fees in the amount of $5,000 and the prayer was that the defendants have and recover a judgment against the plaintiff in the amount of $225,000 together with $3,000 per month from January 1, 1957, together with the costs of the action, and that the said judgment be reduced and off-set by any recovery by the plaintiff.
The plaintiff orally moved to strike paragraphs 24, 25, 26, 27 and 28 of the petition on the ground that the damages set forth therein were not recoverable in the cross-action, and moved to dismiss the cross-action on the ground that it failed to set forth a cause of action.
1. It appears from the additional record sent to this court that the Honorable Oscar W. Roberts, trustee in bankruptcy for the parties named as defendants in error, intervened in the court below for the purpose of defending and prosecuting the action, and that his motion to intervene was granted by the trial court on October 8, 1957. It further appears that he was represented by the same counsel who represent the other defendants and upon whom service of all motions and pleadings in the court below and upon whom service of the writ of error in this court and all briefs in this court have been perfected, and who appeared by brief and oral argument for the named defendants in error. The bill of exceptions, however, failed to name the said Oscar W. Roberts as a defendant in error and counsel for the defendants in error have made a motion to dismiss the writ of error on the ground that it failed to name a necessary party as defendant in error. Counsel for the plaintiff in error have made a counter-motion to amend the bill of exceptions and to add the said Oscar W. Roberts, Jr., as a party defendant in this court. The motion to dismiss the writ of error is not meritorious under authority of Code, § 6-1202, and, therefore, is denied. The motion to amend the bill of exceptions so as to name the Honorable Oscar W. Roberts a party defendant in error is proper and has been granted. Chatfield v. Dennington, 206 Ga. 762(1), 58 S.E.2d 842.
1. The defendant contends in this court that these motions were properly overruled by the trial court since they sought to attack individual paragraphs of the cross-action rather than the cross-action as a whole, and that the proper method of attacking the individual paragraphs of the cross-action is by special demurrer, which must be in writing and must be filed within 15 days after the cross-action is filed. Code, § 81-301. This contention is not meritorious. A motion to strike is nothing more than a demurrer. It performs the office of a general demurrer. Holcombe v. Jones, 197 Ga. 825, 829, 30 S.E.2d 903; Meads v. Williams, ...
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