Dalton City Co. v. Dalton Mfg. Co.

• Decision Date: 31 March 1862
• Parties: Dalton City Company, plaintiff in error. vs. Dalton Manufacturing Company, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 243

Dalton City Company, plaintiff in error. vs. Dalton Manufacturing Company, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1862

Debt, in Whitfield Superior Court. Tried before Judge Walker, at November Term, 1861.

Suit was brought by the Dalton Manufacturing Company, machinists, against the Dalton City Company and Rufus K. Ford, as partners, on the following note:

Dalton, Geo., Oct. 10, 1850.

$658. One day after date I promise to pay to Dalton Manufacturing Company, or order, the sum of six hundred and fifty-eight dollars, for value received.

R. K. Ford & Co.

The declaration avers that the note was given for certain machinery which had been set up and attached to a steam mill, the property of defendants, in the city of Dalton, and that the lien of plaintiffs on the same had been duly made out and recorded.

The Dalton City Company, one of defendants, filed their plea denying any partnership between Ford and themselves, and also a plea of set-off, setting up an indebtedness to them from the plaintiffs of some $2,500 00, and offering to give credit to plaintiffs for the amount of their claim should the same be established, which pleas were signed by J. A. Glenn, attorney for Dalton City Company.

When the case was called for trial, the Dalton City Company, by Benjamin E. Green, Esq., their attorney in fact, moved for a continuance on the ground of the absence of their counsel, A. R. Wright and J. A. Glenn, Esq'rs., who were in the military service of the country, which motion was refused by the Court, on the ground that Mr. Glenn had made an arrangement with L. W. Crook to represent him in his cases. The fact was, (so states the bill of exceptions,) that when the case was called, Judge Crook had left the Court on a canvass for the Confederate Congress. To this refusal of the Court to grant a continuance defendants excepted.

On motion of plaintiffs, the plea of set-off was stricken out against the opposition of Dalton City Company, and said defendant excepted.

Plaintiffs having offered in evidence the note sued on, and the record of their lien, also introduced a lease from the Dalton City Company to R. K. Ford, whereby said Company leased to said Ford for the period of one year, with the privilege of renewal for four years, the steam mill in the city of Dalton, with all the machinery, etc.

The second article provides that the death of Ford at any time shall terminate the lease, and that said lease " partakes of the character of a personal trust, so far at least as that it is understood that it is not assignable, neither shall it pass to executors or administrators in case of said Ford's death, "and that Ford shall give his personal attention to the working of said mill.

Article third describes the kind of work to be done at the mill, namely, a general wood machine shop and cabinet business, for which purpose Ford is to furnish certain machinery, the cost of said machines to be allowed for, and deducted from, the gross profits of the business in estimating the amount due for rent, as provided for hereafter."

Article fourth provides that " inasmuch as both parties are at a loss to decide what sum would be a fair rent for said property, or what rent the proposed business will justify, it is agreed that said Ford shall pay as rent for the first year a sum equal to one-half the net profits of his business, as well on putting up elsewhere any work, the material of which is prepared wholly or in part at said mill, as on the work done, put up and completed at said mill; and at the expiration of said first year, said parties shall agree on a final sum as rent for the term of renewal, or ascertain the same by reference to the profits of said business, said sum not to exceed or fall short of one-half the net profits of said business, and for this purpose said Ford shall keep a correct account of all the transactions of said mill, and also of all work done elsewhere, in putting up and finishing any work, the material for which, in whole or in part, may have been prepared at said mill, in a book or books, which shall be at all times open to the inspection of the agent of said Dalton City Company, said books to be posted weekly, and a balance struck every three months, when the proportion of rent appearing due shall be payable, and if the business should require a book-keeper, one to be employed by Ford, with the approval, as to the person to be employed, of the agent of the Dalton City Company.

By article fifth, Ford may, should the business require it, erect additional buildings, with the consent of the agent of the Company.

Article sixth contains the covenant of Ford to pay rent as above described, and to deliver peaceable possession on the termination of the lease.

By seventh article it is agreed that on the expiration ofthe lease, Ford may remove from the mill any machinery added by him, unless the Company should wish to retain it, in which case he is to receive a reasonable price therefor.

Plaintiff then proved that the note was given for machinery furnished to R. K. Ford & Co., who were in possession of the mill under the lease.

Defendant proved by Benjamin E. Green, that as agent of the Dalton City Company, he gave notice to Robert Batey, the president and general manager of Dalton Manufacturing Company, that if said Company furnished Ford with machinery, they must look to Ford, and not to him or the Dalton City Company for payment. Witness did not tell Batey not to proceed with the work for Ford in the precise words of the statute, but did tell Batey, in substance, that if he did proceed, he must look to Ford alone for payment. Batey had come to witness to know who he was to look to for pay for the machinery.

J. W. Walker, introduced by plaintiff, testified that while he was working at the mill, Benjamin E. Green came there, and said that he wished he had had witness there five years ago, it would have saved him several thousand dollars.

The Court charged the jury as follows:

" In the opinion of the Court, the Dalton City Company is not, by the lease introduced, a partner of R. K. Ford, and this being the only evidence on the subject, you will not find a verdict against the Dalton City Company. It is admitted that you shall find a verdict against Ford.

The only question for your consideration is, whether this debt creates a lien on the mill or not? In the opinion of the Court, the lease, and Ford's possession under it, would be sufficient to authorize him to create a lien on the premises for the value of the machinery purchased by him for the purposes contemplated by the lease. It is insisted that the lien has been prevented from attaching by reason of the notice given according to the provisions of the 8th section of the Act of 1834.

It is a question of fact for you to decide, under the evidence, whether the Dalton City Company, before the com-mencement of the making of said machinery, gave notice to plaintiff not to proceed therewith. If it did give such notice, then the plaintiff could not proceed to commence and make machinery, and thereby create a lien on the property of the Dalton City Company, for the plaintiff, by the lease, shews title in the Dalton City Company. What the notice was which Colonel Green gave to the President of the Company, Batey, is for you to decide under the evidence. If the notice was that the City Company would not be liable as a partner for the debt, and did not notify plaintiff not to proceed with the work, it would not relieve the premises from the lien. The notice need not be in the very words of the statute. If the notice was that the plaintiff must look to Ford alone for payment, exclusive of any lien, this would be sufficient, provided it was given before the work commenced. Did he in substance notify Batey, before the work commenced, that the property would not be bound? If so, plaintiff could not go on and commence and make machinery, and thereby create a lien on the property. If such notice was not given, then the lien attached, it not being denied that the other requisites to create a lien have been shown. The fact that the plaintiff is a corporation, and the Dalton City Company is also a corporation, makes no difference in the legal principles which govern the case, for a corporation may be a machinist in the eye of the law as well as an individual."

Counsel for the Dalton Manufacturing Company excepted to that portion of the charge directing the jury to find, under the testimony, that the Dalton City Company was not a partner of Ford, and here alleges the same to be error.

The jury found a verdict against Ford for the amount of the note, to be levied on the property described in the declaration in the case, and " we find for the Dalton City Company."

The Dalton City Company moved the Court for a new trial:

1. Because the Court refused to grant a continuance on account of the absence of defendant's counsel, A. R. Wright and J. A. Glenn, absent in the military service of the Confederate States.

2. Because the Court refused to grant a continuance forthe absence of J. A. Glenn, on the ground that he had made an arrangement with L. W. Crook to represent him in his cases, though in fact, when this case was called, Judge Crook had left town on a canvass for Congress, and all the other counsel whom defendant could have called on for assistance in conducting the trial, had left for their homes.

3. Because, under these circumstances, Benjamin E. Green, the general agent for defendant, not being a practicing attorney, nor familiar with the trial of causes, was compelled to conduct the trial as counsel, and either omitted to state, when on the stand as witness, that notice was given to Batey before the commencement of the work, or referred to the time when the notice was given so casually as to escape the attention of the jury.

4. Because, under the circumstances, defendant did not have a fair chance of their case to the jury.

5. Because this was the...