Gaulding v. Courts, 35216

• Decision Date: 07 July 1954
• Docket Number: No. 2,No. 35216,35216,2
• Citation: 90 Ga.App. 472,83 S.E.2d 288
• Parties: . Court of Appeals of Georgia, Division
• Court: Georgia Court of Appeals

Page 288

83 S.E.2d 288

90 Ga.App. 472

GAULDING v. COURTS et al.

No. 35216.

Court of Appeals of Georgia, Division No. 2.

July 7, 1954.

Rehearing Denied July 21, 1954.

Syllabus by the Court.

1. No error harmful to the movant is shown by the failure of the court, on request of the foreman of the jury, to present the two possible verdicts to the jury in writing, it appearing that the jury had already reached its decision in the case, and, after the verdicts were presented orally, indicated the one which had been decided upon, which the court then reduced to writing.

2. On appeal from a finding of fact of the auditor hearing the case, the jury before whom the issue was tried in the superior court found against the defendant's plea of non est factum interposed to a brokerage contract under which the plaintiff brokerage firm contended that it was acting in making trades and incurring liabilities on behalf of the defendant. The evidence of four witnesses to the effect that they were familiar with the defendant's signature, and that the signature on the contract was his, was sufficient to authorize a jury verdict against the plea of non est factum, and the denying of the motion for a new trial on the general grounds is without error.

3. The overruling of a special demurrer to the petition does not require reversal of the case for the reasons stated in the corresponding division of this opinion.

4. The record does not affirmatively show that the auditor improperly used signatures of the defendant for comparison with a disputed signature, and this issue was retried on appeal before a jury. For these reasons, an exception of law to an admittedly correct statement of a principle of law on the ground that the auditor had in fact used comparison signatures in an illegitimate manner was properly overruled.

5. Where, as here, a written contract expressly provides that protests of trades placed by a brokerage firm for a client shall be in writing, and further provides that no contract condition may be waived, altered, modified or amended except in writing signed by a member of a firm, an unauthorized waiver of the provision that protests must be in writing, made by an employee not a member of the firm, is not binding upon the principal in the absence of allegations that such principal knew of and ratified the unauthorized act of the agent. Accordingly, the defendant's answer here, seeking to show such waiver, was insufficient in law, and there was no error in sustaining a motion to strike the same.

6. The court properly entered up a judgment in favor of the plaintiff.

Courts & Company, a partnership consisting of certain named partners, filed an action in the Superior Court of Madison County, alleging that the defendant, John M. Gaulding, was indebted to it in a sum certain on an account for the purchase and sale of cotton-futures contracts in which the plaintiffs acted as brokers for the defendant. The defendant filed certain special demurrers to the petition, an answer and cross-action, and prayed an order referring the case to an auditor, which prayer was granted. Both petition and answer were several times amended, and the plaintiff made a motion to strike the defendant's answer which was sustained by the auditor. The plaintiff by amendment set up a written contract denominated a customer's agreement, allegedly signed by the defendant, to which the latter filed a plea of non est factum. The auditor found against this plea, filed his findings of fact and of law, and entered a report against the defendant recommending judgment for $3,536.10, the exact amount for which the action was brought. Exceptions of law and of fact were made by the defendant. The judge of the superior court submitted to a jury the exceptions of fact dealing with the plea of non est factum, and the jury returned a verdict in favor of the findings of the auditor and against the plea. A motion for new trial was made and denied, and error is assigned thereon. Thereafter, the judge disallowed the exceptions of law, approved the auditor's report, and denied a motion to recommit the case, on which judgment error is also assigned, as well as upon the final judgment in favor of the plaintiff.

C. O. Baker, Robt. E. Gibson, Athens, John M. Gaulding, Jr., Gainesville, for plaintiff in error.

Jas. W. Arnold, Edwin Fortson, Athens, for defendants in error.

TOWNSEND, Judge.

1. The single special ground of the motion for new trial assigns error upon the failure of the court to write out the possible verdicts in the case when requested by the jury so to do. Code, § 110-103 provides as follows: 'The judges of the superior courts shall, upon request of the jury, in the trial of all civil cases, furnish said jury with written instructions as to the form of their verdict.' After the jury had deliberated, they returned and the foreman of the jury requested that the verdicts be written out. In response to questions by the court, the foreman stated that they had agreed on a verdict, and wanted the court to read the verdicts submitted; that the foreman would state which one it was and then the court would write it out, which was done. Since the foreman stated that the jury had already found 'with the auditor', and the jury was polled as to the verdict reached, any error in failing to write out the verdict in favor of the defendant and 'against the auditor' was harmless to movant, and would not be a ground of a motion for new trial, such as to authorize the reversal of the case, since error, to be harmful, must be accompanied by injury. Chapman v. Walden, 183 Ga. 395, 398, 188 S.E. 885.

2. As to the general grounds of the motion for a new trial on the plea of non est factum, four witnesses testified that they were familiar with the defendant's signature, and that in their opinion the signature was that of the defendant. One witness testified, as to the customer's agreement, that the defendant had himself returned it signed to the office, and had on subsequent occasions gone over it with the witness, was familiar with it, and had never denied that he executed it previous to the filing of this action. Other signatures were introduced for purposes of comparison. 'A nonexpert witness, under Civ.Code 1910, § 5835 [Code, § 38-708], is competent to testify as to his belief in the genuineness or falsity of the signature to a writing, who will swear that he knows or would recognize the handwriting of the person purporting to have signed. The sources of the witness' knowledge go to his credit and the weight of his evidence.' Finch v. Hayes, 147 Ga. 147, 93 S.E. 89. The authenticity of the signature under this evidence became a jury question. The court did not err in overruling the motion for a new trial.

3. A special demurrer was interposed to the plaintiff's petition on the ground that no bill of particulars was thereto attached. The petition as amended set out the customer's agreement under which plaintiff acted as the defendant's broker, and substantially set forth the items with which the defendant is charged. It is also alleged that there is a credit due defendant which reduces the sum owing from $5,870 to $3,536.10. There was no demurrer to this allegation, and the special demurrer, the overruling of which is assigned as error, is solely on the ground that no bill of particulars is attached to the petition. Exception was also taken to the auditor's report finding as a matter of law in favor of the plaintiff, and to the entry of a judgment thereon by the trial court. The special demurrer, the overruling of which is assigned as error, and the rulings on the entry of the final judgment are considered together. Code, § 81-105 provides in part: 'Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon.' The action here is based on a mutual account between the plaintiff firm and the defendant. The allegation in the petition stating the basis for the indebtedness of the defendant is sufficiently set forth. The allegations of the petition with reference to the credits, however, are not sufficiently shown. We think the better practice would be to plead in a mutual account such as this not only the basis for the indebtedness of the defendant, but also the specified items of credit which would result in showing the indebtedness sued for. However, it seems to be well settled in this State that credits do not have to be pleaded with the same particularity as the items which constitute the cause of action on behalf of the plaintiff. In Wagener v. Steele, 117 Ga. 145, at page 148, 43 S.E. 403, at page 404 it is held as follows: 'It is said that the court ought to have sustained the special demurrer on the ground that the items of credit were not set forth with sufficient certainty and fullness. The items of indebtedness which are the basis of the suit, of course, must be set forth with sufficient certainty to put the defendant on notice of what he is to defend,--that is, of what the basis of the plaintiff's claim against him consists; but we do not think that the items of credit, which simply show that the plaintiff admits an indebtedness on his part from time to time to the defendant, are required to be set forth with the same degree of certainty as is required where a judgment is...