Gen. Tire & Rubber Co v. Brown Tire Co

• Decision Date: 12 January 1933
• Docket Number: No. 22341.,22341.
• Citation: 46 Ga.App. 548,168 S.E. 75
• Court: Georgia Court of Appeals
• Parties: GENERAL TIRE & RUBBER CO. v. BROWN TIRE CO., Inc

46 Ga.App. 548

168 S.E. 75

GENERAL TIRE & RUBBER CO.

v.BROWN TIRE CO., Inc

No. 22341.

Court of Appeals of Georgia, Division No. 2.

Jan. 12, 1933.

.

Rehearing Granted Feb. 17, 1933.

Judgment Adhered to March 3, 1933.

Syllabus by Editorial Staff.

Error from City Court of Savannah; John Rourke, Jr., Judge.

Suit by the General Tire & Rubber Company against the Brown Tire Company, Inc., wherein the defendant filed a cross-action. To review a judgment in favor of the defendant on its cross-action, the plaintiff brings error.

Judgment affirmed.

The General Tire & Rubber Company brought suit in the city court of Savannah against the Brown Tire Company, Inc., for $1,781.57, alleged to be due it by the defendant on open account. The defendant filed its answer in which it denied that it was indebted to the plaintiff, and set up that the plaintiff had not allowed a credit of $550 on the account, and that the plaintiff was liable to it by reason of a breach of contract, in the sum of $10,000, and prayed for judgment in the sum of $8,76S.43 against the plaintiff. The alleged contract between the plaintiff and the defendant is one whereby the plaintiff in May, 1928, made the defendant its sole and exclusive agent at Savannah, Ga., for the sale of its products in that territory; the plaintiff requiring that the defendant install in the gasoline filling station business of the defendant a complete tire repairing and vulcanizing outfit, ' the same to be purchased through the plaintiff. This the defendant did at a cost to it of $2,000. This contract was to continue in force for an indefinite period of time, with the right of the plaintiff to terminate it on giving the defendant one year's notice. The defendant set up that the plaintiff, without cause, in September, 1930, breached this contract and notified the defendant that at the end of thirty days it would terminate the exclusive agency with it and cease to ship defendant its products for sale by him in the Savannah territory, and in pursuance thereof the plaintiff terminated the contract with the defendant; that, by reason of this, the defendant had no use for the equipment and machinery which it was required to purchase, and it sold the same for $600, thereby losing $1,400; that the defendant had earned net profits of $6,000 per year for the average yearly period prior to the time of the breach of this contract by the plaintiff; and that, if the contract had not been breached, the defendant would have earned the net profit of $6,000 during the succeeding year. The defendant further set up that the breach of the contract by the plaintiff was willful and made at a time when the defendant was unable, because of business conditions, to obtain another general agency for the sale of tires, and that by reason thereof it lost a lucrative trade in its gasoline business, which it had built up by. reason of its tire connection with the plain-, tiff, amounting to an average of $2,000 per year. The defendant then alleged that It was entitled to the above sum of $10,000. less the amount sued for by the plaintiff di-minished by said credit, as damages for the breach of said contract.

The plaintiff demurred to the answer, upon the ground that it set forth no valid defense to the petition, and upon various special grounds. On November 28, 1931, the court overruled the demurrer on all its grounds, and to this judgment the plaintiff on December 5, 1931, excepted pendente lite, and on the same day sued out a direct bill of exceptions to this court, complaining of this judgment. On January 13, 1932, this court passed an order in the case that "On motion it is ordered that counsel for the plaintiff in error be allowed to withdraw this case; and that the judgment of the court below stand affirmed." Thereafter, in March, 1932, the defendant amended its answer by setting up that the contract between it and the plaintiff, when considered in connection with its gasoline and oil business, was worth $10,000 to it, and that by reason of plaintiff's breach thereof it had been damaged in that sum. To this amendment the plaintiff demurred on the ground that it set forth no defense or counterclaim to the petition, that it set forth no legal or proper measure of damage, and that it did not show to what extent the good will tended to enhance the value of defendant's contract with the plaintiff. In this demurrer the plaintiff stated that it renewed all its previous demurrer, general and special, to the answer and cross-action as amended. The court overruled this demurrer, and to this judgment the plaintiff excepted pendente lite, and assigns error thereon in the bill of exceptions in this case. The case came on for trial, and resulted in a verdict for the defendant for $7,050. In the bill of exceptions the plaintiff assigns error on the judgment of November 28, 1931, and there is incorporated in the record its exceptions pendente lite to this judgment. The plaintiff in this last direct bill of exceptions also assigns error on the order of the court in admitting certain testimony of the defendant of the trial of the case, setting out therein the objectionable testimony. The bill of exceptions states that, the court having refused to sustain the motions and demurrers of the plaintiff, and such rulings being controlling and entering into and affecting the progress and final result in the case, it was error for the court to permit the verdict to be rendered and judgment entered thereon, and that the same was contrary to law.

Cobb & Bright, of Savannah, for plaintiff in error.

Abrahams, Bouhan, Atkinson & Lawrence and II. Mercer Jordan, all of Savannah, for defendant in error.

SUTTON, Judge.

1. The plaintiff having elected to sue out a direct bill of exceptions to this court complaining of the judgment of the court overruling its demurrers to the answer, and such direct bill of exceptions having been withdrawn by order of this court providing that the judgment of the court below "stand affirmed, " it cannot, in a subsequent direct bill of exceptions complaining of a verdict rendered against it on the trial of the case, assign error on the judgment overruling its demurrers to the answer. A party cannot sue out two bills of exceptions complaining of the same judgment. This is true although the first bill of exceptions is withdrawn by the plaintiff in error before the second bill of exceptions is sued out. Bank of the State of Georgia v. Citizens' Bank, 06 Ga. 752; Williams v. Clarke, 70 Ga. 405; Perry v. Central Railroad, 74 Ga. 411 (3); Marshall v. Livingston, 77 Ga. 21 (5); Greer v. Holdridge, SO Ga. 791, 13 S. E. 108; Beck & Gregg Hardware Co. v. Crum, 127 Ga. 94, 56 S. E. 242; Bateman v. Gunn, 31 Ga. App. 4S5, 120 S. E. 703; Taylor v. Taylor, 43 Ga. App. 472, 159 S. E. 290. In these circumstances this court cannot consider the action of the trial court in overruling plaintiff's demurrers to the answer. The action of the trial court in this matter has been finally adjudicated.

(a) This ruling applies to the exceptions pendente lite filed on December 5, 1031, at the time the first bill of exceptions was sued out; such exceptions pendente...