Florida M. & G. R. Co. v. Varnedoe
| Decision Date | 12 July 1888 |
| Citation | 7 S.E. 129,81 Ga. 175 |
| Parties | FLORIDA M. & G. R. CO. v. VARNEDOE. |
| Court | Georgia Supreme Court |
Error from superior court, Lowndes county; HANSELL, Judge.
S. L Varnedoe sued the Florida Midland & Georgia Railroad Company for $3,485.98, on an account for 19, 911 railroad cross-ties cut and delivered. He afterwards amended his declaration alleging that the defendant owed him the amount named for the cutting, preparation, and delivery to it of the cross-ties which had been before then got out and prepared in accordance with the terms of a written contract between plaintiff and one Miles W. Peck, entered into March 30, 1884, Peck at that time claiming to act as the agent and general manager of defendant, which, on April 1, 1884, through its recognized officers and proper agents, ratified the contract exhibited to it, (a copy being shown to the court;) and the ties, having been prepared according to the terms of the contract, were, on May 20, 1884, at the request of defendant, delivered to it and by it received at the prices and on the terms stated in the contract, etc. The copy contract attached to the amendment recites that it is made between Miles W. Peck, agent of the Florida Midland & Georgia Railroad Company, and Samuel L. Varnedoe, and agrees to pay at the rate of 18 cents apiece for railroad ties of certain dimensions and kinds, and for certain piles for trestles of certain kinds mentioned at a certain rate; Varnedoe agreeing to deliver the ties in certain quantities. It is a sealed instrument, signed by Miles W. Peck and L. Varnedoe. The defendant moved to dismiss the declaration for the following causes: (1) Because, being on an open account, with a copy of the contract attached, it shows no cause of action against the defendant, the contract being a specialty between Varnedoe and Peck; (2) because if there has been any adoption or ratification on part of the defendant, it should have been in writing under seal, and should have been set out and declared upon in the pleadings; (3) because the contract is under seal, and plaintiff cannot waive the covenants therein against Peck, and sustain an action on account against plaintiff. This motion was overruled. Plaintiff, by his own testimony and other evidence, undertook to prove his account sued on, and liability of defendant thereon, by showing he had contracted with agents of defendant, and had delivered ties and lumber according to contract to defendant's agents. Defendant was a Florida corporation, and there was evidence showing that there was a Georgia corporation of same name as defendant; and defendant, by its evidence, sought to prove that the agents of the Georgia corporation, and not of defendant, had contracted with plaintiff. The jury found for plaintiff, and defendant moved for a new trial on following grounds: (1, 2) Because of error in overruling defendant's motion to strike the amendment and dismiss the declaration; (3) because of error in permitting plaintiff to testify as to where the contract was made, who were present, and other circumstances; (4) because of error in admitting plaintiff's testimony as to what Pendleton said to him concerning Peck's agency, authority, etc. (It is not stated in the motion that this testimony was objected to when offered.) (5) Because of error in allowing plaintiff to testify as to what Chandler said to him concerning the cross-ties and their inspection; (6) because of error in permitting plaintiff to testify as to what McClave swore on the trial of the Bracken case; (7) because of error in permitting plaintiff to testify as to what Lehlback told him about the ties; (8) because of error in admitting the newspaper extract.
J. R. Alexander, J. M. Wilkerson, and Charles B. Meyer, for plaintiff in error.
W. M. Hammond and Smith & Slater, for defendant in error.
Varnedoe brought suit against the railroad company for certain cross-ties cut and delivered to it. Upon the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiff. A...
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...equal force to the declarations of Biggio, the auditor, secretary, bookkeeper, or director of the corporation. The case of Railway v. Varnedoe, 81 Ga. 175, 7 S. E. 129, is similar to this, and in that case the Supreme Court of Georgia said: "We do not think that the plaintiff should have be......
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