Felker v. Johnson

• Decision Date: 27 April 1936
• Docket Number: 25098.
• Parties: FELKER v. JOHNSON
• Court: Georgia Court of Appeals

186 S.E. 144

53 Ga.App. 390

FELKER v. JOHNSON

No. 25098.

Court of Appeals of Georgia, First Division

April 27, 1936

Rehearing Denied June 5, 1936.

Error from Superior Court, Walton County; Blanton Fortson, Judge.

Suit by S.R. Johnson against J.H. Felker. Judgment for plaintiff defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Syllabus by the Court.

1. The petition set out a cause of action, and it was not error to overrule the demurrer filed thereto. The evidence also supports the allegations of the petition, and the jury's verdict for the plaintiff is therefore upheld.

2. "When it does not affirmatively appear from the record that a party had exhausted his peremptory challenges at the time the full panel of jurors was accepted and sworn, the appellate court will presume that he was not prejudiced by the action of the court in erroneously disallowing his challenge for cause and will not grant a reversal for the alleged error."

a. Likewise, when the name of a juror who is not present in court is inadvertently left on a list of jurors presented to counsel from which to strike a jury and such jury is accepted and sworn, a discovery and complaint of this fact after verdict will not constitute reversible error, where it appears that such absent juror was peremptorily challenged and stricken by the complaining party, and also it does not appear that he had exhausted his peremptory challenges.

3. If any amount be due in the present case, and the jury has found that there was, it was a liquidated demand, and as such bore interest. If the jury render a verdict for a liquidated demand, they should give interest thereon. Earnest v Nappier, 19 Ga. 537; Code 1933, § 57-110.

Joseph H. Felker, of Monroe, for plaintiff in error.

Roberts & Roberts, of Monroe, for defendant in error.

GUERRY Judge.

On October 18, 1909, Steve R. Johnson filed suit in the city court of Monroe against Joseph H. Felker, alleging:

That Felker was indebted to him in the sum of $250 besides interest, for the reason that on or about November 6, 1907 the defendant entered into a contract with the plaintiff by the terms of which the plaintiff "was to sell as auctioneer certain lots of land in the town of Monroe, Walton County, Georgia, and to receive for his services as auctioneer the sum of $500 and expenses," and that this contract was evidenced by the following letters:

"November 5, 1907.

"Mr. Jos. H. Felker, Monroe, Georgia.

"Dear Mr. Felker: Your postal to hand. I hasten to reply. My terms are 5% on gross sales with a guarantee of $100 and expenses. If the commission on sales should amount to more than $100 and expenses, then the 5% would apply. These are my terms to everybody, without exception. You having insisted on a flat sale when I was over there, I told you that I would make your sale for $500 and expenses. Whether or not you employ me it is gratifying to note that you appreciate the fact that there is a difference in auctioneers. Seventeen years experience and no failures is my guarantee of success. Awaiting your pleasure, I am

"Yours truly,

"S.R. Johnson.

"Monroe, Ga. Nov. 6, 1907.

"The Felker Hardware Co. Hardware,

Stoves, Ranges, House Furnishings, Paints and Oil.

"Dear Mr. Johnson: Although you are the highest priced man on the list, I have decided to accept your terms for my sale, to wit: $500. I have engaged the Jefferson brass band, and expect a good crowd. I realize that most depends on the auctioneer. I suppose you'll come down about Tuesday afternoon, spending all day Wednesday before the sale next day.

"Yours very truly,

"Jos. H. Felker."

"That, in compliance with said agreement, he went to the city of Monroe on Thursday, November 28, 1907, and proceeded to act as auctioneer and to sell the said lots according to the terms of the contract. That before the sale of said lots was completed "he was prevented from completing the sale of said lots by the arbitrary order of the defendant," and was at that time "at the premises being offered for sale ready and willing to complete the same, according to the terms of his said contract," and would have completed the sale except for the arbitrary order of defendant, and that the stoppage of the sale was through no fault or act of the plaintiff. That $250 was paid on said contract, but the defendant refuses to pay the remainder.

The defendant filed the following demurrer to the petition: "1. That the contract on which said suit is brought is not sufficiently set out. 2. That plaintiff fails to set out the terms of the contract, what lots were to be sold; what he was to do; on what conditions the sale was to take place, etc.; but seeks to set up as the contract, a couple of letters attached to his petition as the whole contract. 3. That plaintiff has failed to set out a complete contract between himself and defendant; that said letters do not make a complete contract. 4. That no cause of action is sufficiently set out in the plaintiff's petition." To the overruling of this demurrer the defendant filed exceptions pendente lite. The case proceeded to trial, and a verdict was rendered for the plaintiff for the amount sued for "without interest." The trial judge returned the jury to their room and instructed them that, if they found in favor of the plaintiff, they must find interest. The jury thereupon returned a verdict in accordance with these instructions.

The defendant filed a motion for new trial, amended the same, and brings exceptions to this court to the order overruling it.

1. It might be well to remark that this case is one well illustrative of the "law's delay" spoken of by Shakespeare, for the melancholy Dane in his famous soliloquy asks: "For who would bear the whips and scorns of time, the oppressor's wrong, the proud man's contumely, the pangs of despised love, the law's delay, etc." Filed in 1909, passed on in the lower court in 1935, up for review in this court now. The allegations of the petition sufficiently set forth a mutual and binding contract between the parties. The letters do not of themselves set forth the entire cause of action. A contract for the sale of lots is set forth, the letters show the relationship of the parties, and the petition further alleges a part compliance and offer and willingness to perform by the plaintiff and the prevention of the completion of the contract by the act of the defendant. A timely special demurrer calling for more details as to the location and number of lots might, if material, have been proper. The demurrer is general in its terms that no complete contract is set out, and the plaintiff in error contends in his brief that it alleges no meeting of minds and that the obligations alleged to have been assumed were too indefinite to be enforced. It seems clear to us that it is alleged that certain lots in the city of Monroe belonging to the defendant were to be sold by the plaintiff as auctioneer and all expenses of the sale to be borne by the defendant and that the plaintiff was to be paid a flat rate for acting as auctioneer at such sale. If the sale was begun and not completed because the defendant refused to allow it to proceed and without fault on part of the plaintiff, the plaintiff would be entitled to recover. The defendant in his answer admits the making of part of the contract, but alleges that there were conditions in the contract as to the condition of the weather, size of the crowd at the auction, and amount of bids, and that, if he withdrew the remainder of the lots from sale, the plaintiff was to be paid on a quantum meruit basis, and that the plaintiff had been paid all his services were worth. The jury settled this issue adversely to the defendant's contention. It was not error to overrule the demurrer.

2. Error is further assigned on the ground that at the organization of the court the clerk called a list of the traverse jurors, and they were sworn by the solicitor general as they stood among the audience in the courtroom in answer to their names. After the trial of a case preceding it, the present case was called, and the clerk handed to counsel for the defendant a list of 24 names as a panel from which to strike a jury. On this list was the name John B. Still, and the defendant struck this name in his peremptory challenges. A jury was sworn after both sides had struck six names each from the list handed them. The next day on...