Georgian Co. v. Kinney

• Decision Date: 09 April 1917
• Docket Number: 8246,8247.
• Citation: 92 S.E. 31,19 Ga.App. 732
• Parties: GEORGIAN CO. v. KINNEY. KINNEY v. GEORGIAN CO.
• Court: Georgia Court of Appeals

92 S.E. 31

19 Ga.App. 732

GEORGIAN CO. v. KINNEY.

KINNEY v. GEORGIAN CO.

Nos. 8246, 8247.

Court of Appeals of Georgia, Second Division

April 9, 1917

Syllabus by the Court.

The assignment of error in the main bill of exceptions is sufficient to give this court jurisdiction. Lyndon v Georgia, Railway & Electric Co., 129 Ga. 353, 58 S.E 1047.

Where a demurrer to a plea is sustained, and the defendant pleads over to meet the objections pointed out by the demurrer, he will not thereafter be heard to complain of the order sustaining the demurrer.

"Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript." James v. Cooledge & Bro., 129 Ga. 860, 60 S.E. 182(4).

Section 6184 of the Civil Code of 1910 provides that a bill of exceptions may be amended and corrected from the record by correcting any imperfection or omission of necessary and proper allegations, but there is no provision of law for amending the bill of exceptions, not by the record, but by agreement of counsel.

Exercising the discretion given by law, this court declines to grant the request of the defendant in error to tax the plaintiff in error with 10 per cent. damages for bringing the case to this court for the purpose of delay.

Where a contract provides that a party securing advertisements for a newspaper shall receive 50 per cent. of the gross receipts for such advertising, and the newspaper company is to collect the accounts therefor, and suit on the contract is brought against the newspaper company, and it admits collecting a certain amount on the contract and in part pleads that "it made a diligent effort to collect all sums due on all contracts turned in by said plaintiff," and no evidence in the case is brought to this court, and the only reference thereto is contained in a bill of exceptions, where it is said, "the plaintiff introduced evidence to sustain the several allegations in his petition," this court, on considering a cross-bill of exceptions in the case does not feel authorized to say that the judge erred in directing a verdict in favor of the plaintiff for half only of the amount shown by the pleadings to have been collected.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Suit by Lee Kinney against the Georgian Company. Judgment for plaintiff on a directed verdict, and defendant excepts, and plaintiff files a cross-bill of exceptions. Judgment on both bills of exceptions affirmed.

Civ Code 1910, § 6184, does not permit the amendment of the bill of exceptions, not by the record, but by agreement of counsel.

Lee Kinney brought suit against the Georgian Company on a contract, a copy of which is as follows:

"Agreement entered into this 7th day of February, 1911, between the Georgian Company, party of the first part, and Lee Kinney, party of the second part: It is proposed to publish on definite dates, to be fixed hereafter, but not later than July 1, 1911, in the daily Atlanta Georgian and News, what shall be known as the triple tabloid supplements, to consist of one or more pages, to be published once a week for three consecutive weeks. It is understood that the party of the second part shall give the necessary time and attention and assume all expenses incident to the securing of the contracts for advertising to be published in said triple tabloid supplements; each contract to cover a minimum space of two inches single column to each advertiser, with a maximum space of one page; the rates to be as follows: $3.00 per inch for each insertion; $180.00 per page each insertion; size of page to be fifteen inches deep, four columns wide. It is agreed that a list of persons or concerns to be solicited for such advertising shall first be submitted to and accepted by the party of the first part, and the party of the first part has the right to refuse any contracts brought in by the party of the second part, and cannot be bound by same unless such contracts are accepted by a duly authorized agent of the party of the first part. It is further agreed by the party of the first part that of the total gross receipts of money received for such advertising the party of the second part shall be entitled to 50 per cent. of the same; and it is further agreed that all checks received in payment of such advertising shall be made payable to the party of the first part."

The plaintiff alleged that he proceeded to secure contracts for advertising in accordance with said contract made with defendant, and the defendant accepted the same to the total amount of $14,777; that under said contract it was the duty of defendant to collect the total amount of advertising from those who contracted for same and had their advertisements published; that he did not know the amount which had been actually collected upon said contracts, but alleged that it exceeded the sum of $7,000, and that a reasonable time had been allowed the defendant to collect the said sum. He asked for interest thereon at 7 per cent. per annum, and prayed for recovery in the amount of $7,388.50, besides interest, the said principal amount being one half of the total amount of the contracts accepted.

The defendant filed lengthy pleas, admitting the making of the contract, that the plaintiff had secured and turned in to the Georgian Company advertising contracts to the amount of $14,777, and that of said amount $8,283 had been collected by defendant; and by way of counterclaim the defendant alleged that it had been damaged by the wrongful acts of certain solicitors employed by the plaintiff to secure advertising, and asked for judgment against the plaintiff in the sum of $10,000. The plaintiff amended his petition by adding thereto copies of three different kinds of contracts which his solicitors secured from three different classes of advertisers. On each of these contracts was printed the following:

"Conditions or representations not expressed on the original and duplicate are not holding."

Defendant admitted in an amended plea that the copies of these contracts were correct. The plaintiff filed general and special demurrers to the plea, and upon the hearing thereof practically all the grounds of the demurrer were sustained, and the plea was stricken. Ten days were given the defendant in which to amend. The defendant redrafted his plea and filed the redrafted plea as an amendment to the original. The plaintiff renewed the demurrers originally filed, and added others, and upon a hearing thereon the court sustained the general demurrer to the counterclaim of the defendant, and sustained certain other grounds of the demurrer. After the filing of his amended plea the defendant, on July 2, 1915, filed a bill of exceptions pendente lite to the order sustaining the demurrer to the original plea, and on November 2, 1915, a bill of exceptions to the order on the demurrer to the amended plea. Upon the trial of the case the plaintiff, as stated in the main bill of exceptions, "introduced evidence to sustain the several allegations in his petition." No evidence was introduced by the defendant. The judge directed a verdict in favor of the plaintiff for $4,140 principal (being one-half of the amount collected), and for interest amounting to $746. The defendant excepted, and the plaintiff filed a cross-bill of exceptions.

Anderson & Rountree, of Atlanta, for plaintiff in error.

Little, Powell, Smith & Goldstein, of Atlanta, for defendant in error.

BLOODWORTH, J. (after stating the facts as above).

2. Is there any merit in the bill of exceptions filed July 2, 1915? Defendant filed a plea with paragraphs numbered from 1 to 16. Plaintiff filed demurrers under which paragraphs 8 to 16 and parts of paragraphs 3 and 6 of the petition were stricken. This order was signed June 9, 1915, and gave the defendant ten days in which to amend. On June 19, 1915, defendant presented to the presiding judge an amendment, which was allowed and ordered filed, subject to demurrer. Several of the paragraphs of the amended plea were in the same language as those which had been stricken by the order of June 9 1915, others were added to, and still others had portions thereof eliminated therefrom. The evident purpose of these changes was to make the amended plea cure the defects in the original plea which were pointed out by the demurrer. Where a demurrer to a plea is filed and sustained, and the defendant pleads over to meet the objections to the original plea pointed out by the demurrer, he will not thereafter be heard to complain of the order sustaining the demurrers. Glover v. S. F. & W. Ry. Co., 107 Ga. 34, 32 S.E. 876 (3); Hamer v. White, 110 Ga. 300, 34 S.E. 1001 (1); Waller v. Clark, 132 Ga. 833, 64 S.E. 1096; Southern Cement Co. v. Logan Coal Co., 136 Ga. 477, 71 S.E. 915; A. C. L. R. R. Co. v. Hart Lumber Co., 2 Ga.App. 88, 58 S.E. 316 (2); Daniel v....