Chambers & Co. v. Walker

• Decision Date: 31 March 1888
• Parties: Chambers & Company. vs. Walker.
• Court: Georgia Supreme Court

80 Ga. 642

Chambers & Company. vs. Walker.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

[COPYRIGHT MATERIAL OMITTED]

Charge of court. Exceptions. Practice. Contracts. Damages. Evidence. Burden of proof. Brief of evidence. Before Judge Marshall J. Clarke. Fulton superior court. October term, 1887.

Reported in the decision.

J. C. Jenkins and Mayson & Hill, for plaintiff in error.

T. P. Westmoreland, contra.

Blandford, Justice.

Walker foreclosed a mortgage on certain personal property belonging to Chambers & Co., and execution was issued and levied thereon. One of the firm of Chambers & Co. filed in t heir behalf an affidavit in the nature of an illegality, in which he set up by way of defence the nonperformance by Walker of a contract which he had made with them at the time the mortgage was given, the mortgage being upon certain horses, mules, carriages, etc., which Walker had sold to them. They insisted that Walker had also sold out the good will of the livery stable business in which this property was employed, and had agreed to aid them in securing patronage; and that Walker had violated his contract; by reason of which he had damaged them to the amount of the mortgage.

A great deal of evidence was heard on the trial of the case, much of which was immaterial, and the jury found a verdict in favor of Walker. Chambers & Co. moved for a new trial, on seventeen grounds; the motion was overruled, and they excepted.

The first three grounds are the ordinary grounds, that the verdict is contrary to law and to the evidence.

1. The 4th ground is, that " the charge of the court, as a whole, is not a full and fair presentation of the law of the case." There is nothing in this ground. It fails to point out wherein the charge is not a full and fair presentation of the law of the case; if there was error in this respect, the plaintiff in error should have pointed it out. It appears to us that the charge was a full and fair presentation of the law applicable to the facts of the case.

2. The 5th ground of the motion is, "5th. Because the court erred in charging the jury as follows: 'The plaintiff says in reply to this latter defence, that it is untrue. He says there was no agreement between him and the defendants beyond a mere sale to them of the property in question for a stipulated price. He moreover says that, while he did not contract to use his influence for the bene fit of defendants, and therefore was not bound to do so, he has not in fact done anything to deter others from patronizing him; and that while he was under no agreement to remain with his own stock, he left there only because the defendants refused to feed them at the agreed rate.\' The errors being, (1) that the above charge is argumentative, and presents the case more favorably for the plaintiff than he was entitled to; (2) it is opinion on what has been proved in the case; (3) it is an unfair and incorrect presentation of the issues involved." We think the court fairly and correctly stated the contention of the plaintiff and the issues involved, and that he expressed no opinion as to what had been proved one way or the other.

3. The 6th ground is, "6th. Because the court erred in charging the jury as follows: ' The plaintiff here, B. F. Walker, foreclosed a mortgage upon certain personal property, against the defendants, Chambers & Co.' The error being. (1) that said charge assumed a fact in issue as proved, and it is therefore an opinion on the evidence; (2) this assumption and above charge is not sustained by the evidence."

The affidavit presented by the plaintiffs in error themselves states that there was a mortgage foreclosed; and the contents of the mortgage and of the affidavit of foreclosure (which had been lost) were proved on the trial by Mr. Westmoreland, counsel for the plaintiff. We therefore do not think this statement in the charge was error.

4. The 7th ground is, "7th. Because the verdict of the jury is contrary to the charge of the court, in this, " etc. This is equivalent to saying that the verdict is contrary to law, and we will not specifically notice this ground.

5. The 8th ground is, " 8th. Because the court erred in charging the jury as follows: 'If you should believe from the evidence that the contract between the parties was as the defendants say, an d that the consideration in part of the written promise of the defendants sued upon was thegood will and influence of the business in which the plaintiff was engaged, and an agreement on the plaintiff\'s part to remain with his stock at defendants\' stable until April 1st, 1886, and to use his influence to induce stock dealers to patronize said stables, and he did not comply with the contract, but on the contrary, withdrew his own patronage from the defendants and exerted his influence to dissuade others from extending their patronage to defendants, and any injury came to defendants, it would be your duty, as to this issue, to allow the defendants such damages as they show by evidence that they have sustained.\' The errors being, that the court charged, (1) that the several breaches of contract must happen conjunctively, in order that defendants could recover any damages; (2) the issue was not alone that the plaintiff, Walker, exerted his influence to dissuade others from extending their patronage to defendants, but that the plaintiff, Walker, did not exert his influence in favor of the defendants; (3) if this charge is intended to be the rule for ascertaining the damages suffered by the defendants, it is erroneous, because it does not cover the issue as stated in the second exception of this ground for new trial."

We do not think there is anything in this ground of the motion. Under the pleadings and facts of this case, we see no error in the charge complained of. We think the latter part of the charge is sufficiently disjunctive as to the breaches of contract; the court charged the jury that it would be their duty as to this issue to allow the defendants such damages as they showed by the evidence they had sustained; which meant, such damages as were sustained by any non-performance on the part of the plaintiff of the conditions of the contract.

6. The 9th ground of the motion is, " 9th. Because the court erred in refusing to give the following written charge requested by counsel for defendants, to-wit: 'If there was a sale of good will and trade, plaintiff would be responsible for breach of the contract for the sale of good will, even though it should appear from evidence that the property, irrespective of good will, was worth the full amount of purchase money, or even more.\' "

We think this request was too general; and besides, that it is covered fully in the general charge of the court. The court is requested to charge the jury that, in a certain event, the plaintiff " would be responsible for breach of the contract." Responsible how? If the request had gone further, and said " responsible for such damages as the proof showed they had sustained, " it would have been sufficiently specific, and a good request. As it stood, it was calculated to mislead the jury.

7. The 10th ground is, " 10th. Because the court erred in charging the jury as follows, to-wit: 'If the contract was as they (defendants) insist, and there was a breach, but no damages are shown to have been suffered by the defendants, you should find in respect to this issue in favor of the plaintiff.' In that the court utterly excludes all idea of nominal damages, and charges substantially that they cannot be recovered in this case, even if a breach of contract is proved." The defendants insisted that they were entitled to nominal damages, as an offset to the plaintiff's claim. We apprehend that nominal damages do not apply to...