Gate City Cotton Mills v. Cherokee Mills

• Citation: 57 S.E. 320,128 Ga. 170
• Parties: GATE CITY COTTON MILLS v. CHEROKEE MILLS et al.
• Decision Date: 13 April 1907
• Court: Georgia Supreme Court

57 S.E. 320

128 Ga. 170

GATE CITY COTTON MILLS v. CHEROKEE MILLS et al.

Supreme Court of Georgia

April 13, 1907

Syllabus by the Court.

Where a plaintiff, under the name of the "Cherokee Mills," brought an action against the defendant, alleging that the latter had made a contract with the plaintiff and had subsequently violated it, and stated that the plaintiff in dealing with the defendant acted through its general manager and that a letter was written on behalf of the plaintiff by its secretary and treasurer to the defendant, and where the defendant filed a general demurrer to the petition, but made no objection to the name as not importing a person natural or artificial, and such demurrer was sustained, and the case brought to this court, where the judgment of the trial court was reversed, and, when the case came on for trial on the merits, a plea was filed by the defendant alleging the plaintiff to be a corporation, a motion for the first time then made to dismiss the action on the ground that there was no plaintiff, and the name of the plaintiff did not import either a corporation, a partnership, or a natural person, was properly overruled.

When the case was formerly before this court, the contract involved was construed to be a written contract, consisting of a proposition in writing and a written acceptance. It was therefore proper to reject the effort to set up by an amended plea, and by offering evidence, that there were additional terms previously agreed upon by parol and not reduced to writing, and that, therefore, a recovery on the contract was prevented by the statute of frauds.

Pending an action for breach of contract by a corporation receivers were appointed for its property and assets. At a later date a petition was filed by the plaintiffs in that proceeding stating that they then owned all the stock in the company and all claims against it, and that no reason existed for the continuation of the receivership; and they prayed that the receivers be discharged, and the property in their hands be delivered to the petitioners. An order was passed to that effect. On the trial of the present case the defendant raised the point that all of the title and interest of the original plaintiff had been transferred to such petitioners, and that the plaintiff was therefore without title or interest in the subject-matter, and could not proceed with the case. The court allowed an amendment to be made upon motion of the original plaintiff, concurred in by the persons above referred to, authorizing the suit to proceed in the name of the plaintiff for their use. Held, that this was not error.

In a suit brought to recover damages for the breach of a contract to deliver yarn, the court having, on objection of counsel for the defendant, excluded evidence of the market value of yarn except at the place of the plaintiff's residence and thus in effect having ruled at the defendant's instance that this was the place of delivery under the contract, there was no error of which the defendant could complain in charging that, if the defendant was liable, the measure of damages would be the difference between the contract price and what the yarn was worth in the market at such place at the time when it ought to have been delivered.

None of the grounds of the motion for a new trial require a reversal.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by the Cherokee Mills, for the use of others, against the Gate City Cotton Mills. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Where a plaintiff, under the name of the "Cherokee Mills," brought an action against the defendant, alleging that the latter had made a contract with the plaintiff and had subsequently violated it, and stated that the plaintiff in dealing with the defendant acted through its general manager and that a letter was written on behalf of the plaintiff by its secretary and treasurer to the defendant, and where the defendant filed a general demurrer to the petition, but made no objection to the name as not importing a person natural or artificial, and such demurrer was sustained, and the case brought to this court, where the judgment of the trial court was reversed, and, when the case came on for trial on the merits, a plea was filed by the defendant alleging the plaintiff to be a corporation, a motion for the first time then made to dismiss the action on the ground that there was no plaintiff, and the name of the plaintiff did not import either a corporation, a partnership, or a natural person, was properly overruled.

The Cherokee Mills of Cedartown, Ga., brought suit against the Gate City Cotton Mills, a corporation of Fulton county, seeking to recover damages for a breach of contract. A verdict for $1,000 was found in favor of the plaintiff. The defendant moved for a new trial. The motion was overruled, and it excepted.

Payne, Jones & Jones, for plaintiff in error.

Jno. K. Davis and J. F. Golightly, for defendant in error.

LUMPKIN, J. (after stating the above facts).

1. Several of the contentions now made are controlled by the decision when the case was formerly before this court. Cherokee Mills v. Gate City Cotton Mills, 122 Ga. 268, 50 S.E. 82. On the last trial the defendant moved to dismiss the case on the ground that it was not alleged in the petition or amendment thereto that the Cherokee Mills was a corporation, or a partnership, or an individual, and that, therefore, there was no party plaintiff having a legal entity, either as a natural or as an artificial person. The motion was overruled. The petition showed that the plaintiff, in dealing with the defendant, acted through its general manager, and also that a letter was written on its behalf by an officer adding to his signature the letters "S. & T." (probably meaning secretary and treasurer). After the plaintiff had brought the suit under the name of the Cherokee Mills, and the defendant, without apparently making and objection on the ground now set up, had filed a general demurrer and a special demurrer, objecting to want of specification in certain allegations, in regard to naming or setting out the plaintiff's officers, and after a ruling had been obtained in favor of the defendant exception taken by the plaintiff, a reversal had, and the case returned to the Supreme Court for trial, it was too late for the defendant, by motion to dismiss, to raise the point for the first time that the name of the party with which it had been litigating did not import a corporation, a partnership, or a natural person. If the plaintiff was person enough to litigate with in the superior court, and to carry the case by bill of exceptions to the Supreme Court and obtain a reversal, it was at least prima facie person enough to continue the litigation. If there was no such entity, it would be shown otherwise than by mere motion to dismiss under such circumstances. In fact, it appears from a plea filed by the defendant that the plaintiff is a corporation.

2. The contract was construed by this court to be not merely a verbal one with written evidence of it, but a written contract, consisting of a definite written proposal and an unconditional acceptance in writing. The written proposition contained a stipulation in regard to delivery other than that in the preceding verbal negotiations or understanding. The decision treats the written proposition and the acceptance as making the contract. While there is some reference in the opinion to the...