Chicago Bldg. & Mfg. Co. v. Butler
| Decision Date | 08 April 1913 |
| Citation | 78 S.E. 244,139 Ga. 816 |
| Parties | CHICAGO BLDG. & MFG. CO. v. BUTLER et al. |
| Court | Georgia Supreme Court |
Rehearing Denied May 16, 1913.
Syllabus by the Court.
Where a judgment excepted to is erroneous in part, and can be segregated so that the legal part can be separated from the illegal, it is not necessary to set aside the entire judgment, but only the part which is erroneous.
(a) Where a number of persons have been sued, and a verdict has been rendered in favor of all the defendants, and where on review the evidence shows that the verdict is sustained as to all the defendants except two, and there is no evidence to support the verdict as to them, the judgment of the trial court, overruling a motion for new trial, will be affirmed as to all of the defendants except the two in whose favor there was no evidence, and as to them the judgment will be reversed.
It was not error to exclude the following evidence offered by the plaintiff, where it does not appear that the defendants were present and were connected in some way with the transaction to wit: "When I commenced soliciting subscriptions, a meeting was held at the courthouse at Greensboro, Ga., and at this time I read the contract in full and explained exactly what would be necessary, and in fact that unless we were able to secure at least 50 signatures, covering 50 shares of stock, at $100 each, the contract would be null and void, and not binding on any of the parties."
Before a paper purporting to be signed by a person can be admitted in evidence, the purpose of introducing which paper is to have a comparison by the jury of the signatures to the paper with the signature to another paper, which is sued upon, and to which a plea of non est factum has been filed, it is necessary that the signature to the former paper shall be legally proved, or acknowledged to be genuine.
The general rule is that parol contemporaneous evidence is not admissible to contradict or vary the terms of a valid written instrument. But where a written instrument is sued upon, and the alleged makers file pleas of non est factum, and that the instrument was procured by fraud, evidence tending to support such pleas is admissible.
(a) In such a case, evidence tending to show that the alleged makers did not sign the alleged contract sued on, and that the contract was procured by fraud, is not admissible as contradicting or varying the terms of a valid written instrument. It denies the existence of such a contract.
Where a member of a partnership signed the firm name to a contract which was as to a matter not legitimately connected with the partnership business, and the partner so signing had no authority to sign such contract, it is not error to allow another member of the firm to testify, on the trial of a case in which the members of the firm were codefendants, that the firm had agreed among themselves that they did not want any stock in the business that the contract was signed to secure.
In this state a wife is a feme sole as to her separate estate, and her husband cannot bind her or her property without her authority. Consequently, where suit was brought against a wife on a contract alleged to have been signed by her, and to which she had filed a plea of non est factum, it was not error to exclude from the jury a postal card, written by the husband to the agent of the plaintiff, authorizing the agent to "put down one share" of the stock called for in the contract to the wife.
It was not error to refuse to allow the attorneys for the plaintiff to put in evidence a copy of a notice, and to testify, in connection therewith, that the same was a copy of a notice sent to each defendant in a suit brought to recover principal, interest, and attorney's fees for an alleged breach of a contract, showing that the attorneys held the claim sued on for collection, including attorney's fees.
Where by the terms of a written contract a butter factory was to be built according to specifications by one of the parties and turned over to the other party thereto on the completion of the plant, a written receipt, accepting the plant as complying with the terms of the contract, and signed by persons other than the parties defendant to the suit, was not admissible in evidence as against those alleged to have breached the contract; it not appearing either that they signed the receipt, or that the committee signing the receipt was one appointed and acting under authority of the contract.
The following charge of the court was not erroneous, because of the use of the word "requires": "Where you find there is a conflict in the evidence, the law requires you to reconcile that conflict without imputing willful perjury" -- especially where the court followed this language immediately with the following: "If, however you find a conflict in the evidence, and are unable to reconcile it, the law requires that you take the entire testimony, search it carefully for the truth, and where you find that truth to be, let that establish and control your verdict."
Error from Superior Court, Greene County; B. L. Rawlings, Judge.
Action by the Chicago Building & Manufacturing Company against J. F Butler and others. Judgment for defendants, and plaintiff brings error. Affirmed in part, and reversed in part.
F. B. Shipp and Jos. P. Brown, both of Greensboro, for plaintiff in error.
Geo. A. Merritt and Noel P. Park, both of Greensboro, for defendants in error.
The Chicago Building & Manufacturing Company brought suit against F. J. Butler and 18 others, and alleged that the defendants were subscribers to a contract wherein each agreed to pay $100, subject to the conditions of the contract, the material portions of which are hereinafter set out. The defendants were alleged also to be members of the Greensboro Creamery Association, referred to in the contract as the first party thereto. By the terms of the contract the plaintiff was to erect, build, equip, and deliver to the defendants a butter factory, in consideration of the purchase price of $4,950. The contract stipulates that "for any unpaid or deferred balance of subscription all delinquent subscribers are jointly liable." It is also provided that, when Also: "Pursuant to the laws of his state and these conditions, it is agreed that each stockholder shall be liable for the amount of stock set opposite his or her name, and no more." It was alleged that all the defendants signed and subscribed to said contract, or authorized their signature and subscription thereto, and became bound by the terms of the contract, and were each severally liable on the contract, as members of the Greensboro Creamery Association, to the plaintiff, for the balance due, amounting to $2,000, besides 33 1/3 per cent. of the amount recovered, which the plaintiff agreed to pay its attorneys of record. The prayer of the petition was for a joint and several judgment against all the defendants for principal, interest, and attorney's fees.
The defendants filed their plea of non est factum, and set up that the alleged contract was obtained from them by the agents of the plaintiff through fraud, in that the subscription list paper was folded by the plaintiff's agents so as to conceal from defendants the written contract on the other side, and by certain misrepresentations made by those agents as to matters not embraced in the contract; that the figures "1" to "100" representing respectively the number of shares of stock and the price thereof, appearing opposite their names, were not on the paper when they signed, and were not placed there by their consent or with their knowledge; and that the paper the defendants signed was a blank sheet, containing only the names of a sufficient number, as the agents of the plaintiff represented, to insure the building of the plant, and defendants did not know they were signing a contract with conditions as set out in the contract sued on. Demurrers in abundance were filed by both the defendants and the plaintiff, some of which were sustained and some overruled by the court. After much evidence pro and con, the case went to the jury, which returned a verdict for all the defendants. A motion for a new trial was overruled, and the plaintiff excepted.
1. The assignments of errors upon the overruling of the various demurrers are without merit. The verdict is supported by the evidence as to all the defendants except two, namely, W. F Jackson and O. A. Parker. They filed the same answers and defenses as the other defendants; and we have searched the record and fail to see any evidence supporting their defense. The plaintiff made out a prima facie case against all the defendants. If the evidence supported the defense filed by these two defendants, we would have little difficulty in affirming the judgment of the court below as to all the defendants; but, there being nothing in the record to support the defense of the two defendants named, we are confronted with the question whether we can affirm the judgment as to the other defendants, and reverse it as to these two. We understand the rule to be that, where a judgment is entire and indivisible, it cannot be affirmed in part and reversed in part, but the whole must be set aside if there be reversible error therein. 3 Cyc. 448 (b); 1 Black on Judgments, § 211. But where a judgment appealed from can be segregated, so that the correct portions can be separated from the erroneous, the court will not set aside...
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