Frickek v. Americus Mfg. & Imp. Co

• Decision Date: 13 November 1905
• Citation: 52 S.E. 65,124 Ga. 165
• Court: Georgia Supreme Court
• Parties: FRICKEK . v. AMERICUS MFG. & IMP. CO.

52 S.E. 65

124 Ga. 165

FRICKEK .

v.AMERICUS MFG. & IMP. CO.

Supreme Court of Georgia.

Nov. 13, 1905.

1. Wkit of Error—Parties—Amendments.

If a necessary party to a bill of exceptions was omitted therefrom, it could be added by amendment at its own instance and that of the plaintiff in error, not changing the record or raising new points, but simply joining the new party in the bill of exceptions already filed by the other.

2. Same — Record — Incorporation of Evidence.

Where an auditor filed as a part of the brief of evidence accompanying his report a stenographic report of the testimony, it became a part of the record, and it can be specified and brought to this court as such; and the bill of exceptions will not be dismissed because there is no condensed and narrative brief.

3. Same—Transcript—Delay in Transmitting.

Where the clerk of the superior court certified that when he went into office on January 2, 1905, he found the bill of exceptions filed on December 31, 1904, that it had been impossible to transcribe the record within 10 days, and that he forwarded it at once_ upon completing a copy on January 20, 1905, and where it does not appear that the plaintiff in error or his counsel caused or contributed to the delay or were in any way at fault, a motion to dismiss the bill of exceptions will be overruled.

4. Same—Auditor's Report—Exceptions.

Where, in an action of an equitable nature, exceptions are filed to an auditor's report, mere general exceptions that such ruling and findings were erroneous under the pleadings and evidence will furnish no ground for reversal.

5. Corporations—Action against Officer— Necessity of Tender.

Where an equitable petition alleged that the defendant, who was a director, and its secretary and treasurer,, had been acting for the petitioner and was still purporting to do so, and occupied a fiduciary relation to it; that he purchased its property at sheriff's sale and took a deed in his own name; that he incumbered it with a mortgage to secure a loan, the amount of which was used in paying the purchase money at the sheriff's sale, and another to certain loan brokers who aided in the transaction; that he was a man of small means and unable to respond in damages; that he had taken possession of all of the plaintiff's property and had received rents, issues, and profits therefrom; that an accounting was necessary to ascertain what, if anything, should be paid to him: and that until such accounting it was ^impossible to determine definitely the status— and where the plaintiff offered to do equity and to pay what should be found justly due, if anything, and sought to have the defendant declared to hold the property in trust for it, and that the decree be so molded as to do equity and to return the property to the plaintiff, the petition was not demurrable for want of a tender to the defendant.

6. Equity—Pleading—Petition.

None of the other grounds of the demurrer were well taken.

7. Reference — Insufficient Report—Procedure.

If the auditor failed to report with sufficient fullness on any issue, a motion for a re-reference, not an exception to his report, was the proper remedy.

8. Nonsuit.

There was no error in refusing to dismiss the case, in the nature of a nonsuit.

9. Trial—Exceptions.

Where a number of letters were admitted in evidence, and an exception was taken to their admission as a whole, and some of them were admissible, the exception cannot be sustained.

10. Use and Occupation—Amount of Recovery.

If an agent or person occupying a fiduciary relation towards an owner of property bought it in at sheriff's sale, anij took title in his own name, and occupied it in part and in part received rents from it, and upon an equitable proceeding it was determined that the owner was entitled to recover the property and have an accounting for rents, issues, and profits, the liability of the defendant was not necessarily limited to the amount of rents actually collected by him while in possession, but would include what he should have received on that account by proper diligence; that is, the reasonable rental value of the property.

11. Corporations—Officers—Disloyalty.

A director of a corporation, who is also its secretary and treasurer and its agent to procure a loan for it to save its property from sheriff's sale, occupies a fiduciary relation towards it, and cannot acquire interests in the property adverse to the company.

12. Same — Unauthorized Services — Compensation.

If a person occupying a fiduciary relation to a corporation, and who was purporting to act for it in procuring a loan to prevent the loss of its property at sheriff's sale, procured a loan and bought the property in his own name, upon a proceeding by equitable petition to recover the property and have an accounting, brought by the company against him, he was not entitled, in addition to his reasonable expenses in procuring the loan, to be credited also with expenses incurred by him in an effort to effect a reorganization of the company without its knowledge or consent; there being no agreement as to the amount for procuring the loan separately.

13. Same—Ratification.

The bringing of an equitable action for the purpose of recovering the property and having an accounting did not operate to ratify the effort to effect a reorganization of the company without its consent.

14. Interest—Use and Occupation.

Mesne profits, or rental value, does not ordinarily bear interest, at least until it becomes a liquidated sum.

15. Trusts—Accounting.

The auditor reported how the balance between the parties stood on March 1, 1901, and that the amount due by the defendant since March 1, 1901, should be credited with all sums paid out by the defendant for interest on the $35,000 loan procured by him at 7 per cent. per annum, and for taxes, insurance, and caring for the property; said credits to be ascertained by the court on the trial of the case. Held, that this finding contemplated the determination by the court, at the trial, of the balance since March 1, 1901; and this could not be properly done in entering up a decree by merely taking the amount which the auditor had found to be the rental value of the property up to March 1, 1901, charging defendant with the same rate per month after that date, and allowing no credits, without further investigation to ascertain the correct balance at the date of the decree.

16. Account—Parties.

Where, in a litigation of the character indicated in the preceding headnote, the defendant claimed credit on account of an amount which he had agreed to pay to certain loan brokers, and an amendment was offered by the plaintiff, charging collusion between the defendant and such brokers, and that he hadgiven to them a mortgage on the property involved in the controversy, which included not only legitimate charges, but also certain charges which were attacked as unlawful, and praying that the brokers be made parties, they being residents, that full relief be granted with respect to the matter, and that their mortgage be canceled, such amendment was proper, and should have been allowed, and the brokers should have been made parties defendant.

17. Same.

In determining between the parties whether the defendant should be allowed credit for certain payments made by him, a corporation to whom the payments were made is not a necessary party, and its absence will not furnish ground for demurrer by the defendant.

18. Same—Indemnity.

In decreeing that possession of the property involved in the controversy should be taken from the defendant and delivered to the plaintiff, there being an outstanding mortgage, the court did not err in the equitable terms which were placed upon the plaintiff, or in requiring it to indemnify the defendant against the mortgage, under the facts of this case.

19. Costs — Equitable Action—Discretion of court.

In an equitable action it is the province of the judge to determine upon whom costs shall fall; and this determination will not be reversed, unless the discretion of the presiding judge is abused.

20. Writ of Error—Reversal.

The judgment of the trial court is reversed, and the case remanded, with directions as to its further progress. (Syllabus by the Court.)

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Action by the Americus Manufacturing & Improvement Company against Charles A. Pricker. There was judgment for plaintiff and both parties bring error. Reversed in part, and affirmed in part.

On April 12, 1900, the Americus Manufacturing & Improvement Company filed its equitable petition against Charles A. Fricker. Briefly stated, it contended as follows: The plaintiff owned a hotel, of the value of $75,000 and of the rental value of $500 per month. It was incumbered with a mortgage for $35,000, which was foreclosed. It was seeking to procure a loan to prevent the sale or save itself from loss of its property. Fricker was a director and its secretary and treasurer, and was engaged in assisting to procure a loan for it. While so acting in company with its vice president, he went to New York for that purpose. Instead of procuring a loan for it, he procured one in his own name, and bought in the property at sheriff's sale, and, though purporting to be acting for the plaintiff, took the title in his own name, paying for the purchase price the money received from the loan referred to above, and $5,000 borrowed from Weyman & Connors, loan brokers, because the amount of the bid was in excess of the loan obtained in New York. He agreed to pay that firm as brokers $5,000 for services in procuring the loan and in seeking to effect a reorganization. He placed mortgages on the property for this loan from the company and to se cure the amount claimed to be due Weyman & Connors. A charter was obtained by the defendant, and an offer made to the old stockholders to take stock in the new company by paying $15 per share, but the proposed new company never became active or received the property....