Farrar Lumber Co. v. City of Dalton

• Decision Date: 07 June 1917
• Docket Number: 8118.
• Citation: 92 S.E. 946,20 Ga.App. 138
• Parties: FARRAR LUMBER CO. v. CITY OF DALTON.
• Court: Georgia Court of Appeals

92 S.E. 946

20 Ga.App. 138

FARRAR LUMBER CO. v. CITY OF DALTON.

No. 8118.

Court of Appeals of Georgia, Second Division

June 7, 1917

Rehearing Denied June 27, 1917.

Syllabus by the Court.

Grounds of a motion for a new trial which complain of the refusal of the court to allow a witness to answer a certain question must of themselves disclose the expected answer, and that the judge was informed of it.

The court did not err in directing a verdict in favor of the defendant, as the evidence, with all reasonable inferences and deductions therefrom, demanded such a finding.

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Suit by the Farrar Lumber Company, a partnership, against the city of Dalton. Judgment for defendant upon a directed verdict, and plaintiff brings error. Affirmed.

C. D McCutchen and F. K. McCutchen, both of Dalton, for plaintiff in error.

M. C Tarver, Geo. G. Glenn, and J. J. Copeland, all of Dalton, for defendant in error.

BLOODWORTH J. (after stating the facts as above).

1. The fourth ground of the motion for a new trial is as follows:

"Because the court erred in making the following ruling upon testimony: 'Mr. Farrar, just go ahead and tell what occurred at the time you appeared there before the council.' 'I appeared before the council--a committee was appointed--rather before the chairman of the fire department committee, to have our bill audited.' Mr Tarver: 'The action of the council is shown by the minutes, and we object.' Mr. McCutchen: 'We want him to tell what the various members said at the meeting.' Court: 'Suppose they had a discussion and finally acted wouldn't the minutes control? I will rule that out. You are bound by the action of the corporation as shown by the minutes, as I understand it.' "

This ground is incomplete. Grounds of a motion for new trial which complain of the refusal of the court to allow a witness to answer a certain question must be complete and must of themselves disclose the expected answer, and that the judge was informed of it. Western & Atlantic R. Co. v. Waldrip, 18 Ga.App. 264, 89 S.E. 346(3). There is nothing in this ground to indicate what the witness would have sworn as to what the various members of the city council said at the meeting. Even if it had been specifically stated what the witness would have sworn, the separate statements of the individuals composing the council would not legally have bound the city. It is only when the minds of a sufficient number of the council unite upon a proposition, and this is voted upon and receives the number of votes required by the charter, that it becomes the action of the city council and binds the city. Until the contrary appears, the action of a city council is supposed to be in writing; and its book of minutes, properly proved as such, or an exemplification of the record, and certified by the clerk or keeper of such records, under seal, is the proper mode of placing the evidence before the court. Civil Code, § 5803; Metropolitan Street Ry. Co. v. Johnson, 90 Ga. 500, 16 S.E. 49(3); Western & Atlantic R. Co. v. Hix, 104 Ga. 12, 30 S.E. 424; Town of Jackson v. Ellis, 116 Ga. 719, 43 S.E. 53(1); In re Lester, 77 Ga. 143.

2. Did the court err in directing a verdict?

(a) There is absolutely no evidence to show that the city council itself, through a committee, or by an authorized agent, or in any other way, ever ordered the material sued for in this case. Therefore the plaintiff could not recover on the idea that the defendant purchased the goods.

(b) Plaintiff in error insists that the city council expressly ratified the purchase by a resolution passed on May 5, 1913, authorizing the clerk to draw a voucher for the bill, and that the voucher was actually issued, and therefore the city should pay the bill. The signature of the mayor was necessary to make good the voucher, and he refused to sign it. Then, on June 16th, the city council rescinded its former action, by resolution, as follows:

"On motion of Alderman Hamilton, that the city council rescind the action of the city council on May 5th, in regard to paying the Farrar Lumber Company account against the North Dalton Fire Department."

Therefore, as far as these resolutions are concerned, the matter stands as though it had never been acted upon by the city council.

(c) Finally, plaintiff in error contends that the city, by its acts, and...