Cline v. Schuster
| Decision Date | 10 January 1966 |
| Docket Number | No. 23260,23260 |
| Citation | 146 S.E.2d 732,221 Ga. 653 |
| Parties | Andrew V. CLINE v. Edward M. SCHUSTER. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It was not error for the court to sustain an objection to the following question propounded to the appellant 'Mr. Cline, had you remembered the $15,000 loan at the time this partnership was terminated, would you have terminated it on the basis the termination was effected?' on the grounds that it called for a speculative and conjectural answer.
2. Where the evidence showed that appellant kept the books and records of the partnership, that appellant made the entry in the books which he claimed to have 'overlooked' when executing the dissolution agreement, that the records were present when said agreement was executed, that the terms of the agreement were discussed by the parties several times and that the agreement stated that it was in full settlement of all obligations, it was not error for the court to strike appellant's amendment alleging that he overlooked the entry and that appellee was under a duty to inform him of his omission.
3. Where a finding that the failure to list a loan in the dissolution agreement was not the mistake of both parties and that appellant could have discovered the omission with reasonable diligence was demanded by the evidence, the court did not err in directing a verdict for the defendant.
Poole, Pearce & Cooper, William F. Lozier, Atlanta, for appellant.
Claude R. Ross, Edwin W. Ross, Ross & Finch, Baxter H. Finch, Atlanta, for appellee.
The appellant, Andrew V. Cline, and the appellee under a written partnership agreement did business under the trade name of Atlanta Curtain Company from January, 1956 to December 30, 1960 when the partnership was mutually dissolved and its assets distributed by written agreement. On February 16, 1962, Cline brought his equitable petition seeking to reform the liquidation agreement of December 20, 1960, on the ground of a mutual mistake in that 'at the time of the said settlement agreement dated December 20, 1960 was executed, and at the time the January 2, 1961, memorandum agreement was executed, petitioner and defendant overlooked and failed to take into account an obligation of the partnership to petitioner in the amount of $15,000, which was a cash loan by petitioner to the partnership on January 6, 1956, which loan had never been and has never been repaid by the partnership to petitioner, and defendant has never paid his part of same, plus interest for year of 1960 at 5% or $750, making a total of $15,750.' The petition asked that such agreement be reformed so as to charge defendant with and require of defendant the payment of $6,262.72 to Cline. The defendant's answer denied all of the material allegations of the petition. At the conclusion of the introduction of evidence by both parties, the court directed a verdict for the defendant, and judgment was entered. Cline filed a notice of appeal and the errors enumerated in this case are the direction of the verdict and rulings antecedent to the verdict.
1. It is asserted that the court erred in sustaining the objection of the defendant to the following question propounded to the appellant: 'Mr. Cline, had you remembered the $15,000 loan at the time this partnership was terminated, would you have terminated it on the basis the termination was effected?' The objection of the appellee was that the question called for a speculative and conjectural answer; that it was incompetent and inadmissible, the dissolution agreement being the highest and best evidence. It was not error to sustain the objection.
2. At the conclusion of the evidence the plaintiff (appellant here) sought to amend his petition by adding 'Count No. 2.'...
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