Glennville Hatchery, Inc. v. Thompson

• Decision Date: 30 November 1982
• Docket Number: No. 64518,64518
• Citation: 164 Ga.App. 819,298 S.E.2d 512
• Parties: GLENNVILLE HATCHERY, INC. v. THOMPSON.
• Court: Georgia Court of Appeals

Page 512

298 S.E.2d 512

164 Ga.App. 819

GLENNVILLE HATCHERY, INC. v. THOMPSON.

No. 64518.

Court of Appeals of Georgia.

Nov. 30, 1982.

M. Francis Stubbs, Reidsville, for appellant.

Glen Cheney, Reidsville, Richard D. Phillips, Ludowici, for appellee.

POPE, Judge.

As appellant Glennville Hatchery, Inc. states in the introduction to its brief, "This is the case of the frustrated chicken grower." Appellant initiated this action, seeking the return of approximately 9,193 chickens from appellee Derrell Thompson or, in the alternative, damages. Appellee admitted having possession of the chickens and counterclaimed for damages based on "misrepresentation and fraudulent and deceitful conduct" and breach of contract. Appellant amended its complaint to include a demand for additional damages allegedly flowing from appellee's negligence in caring for the chickens and also the decrease in the market value of the chickens. Following three days of testimony, a jury returned a verdict of $75,000.00 in favor of appellee. Appellant's motion for judgment n.o.v., or in the alternative for new trial, was denied. Appellant brings this appeal enumerating a multitude of errors.

The parties herein entered into an agreement by which appellant agreed to provide a number of breeder chickens to appellee and the feed, medication and sanitation products to develop a breeder flock. Appellee agreed to furnish the building, equipment, labor, etc. for the proper care and growing of the chickens. Appellee received compensation based on the number of eggs produced and the hatchability of those eggs. Bonus compensation based on the number of chicks produced per hen and upon the amount of feed used per dozen hatching eggs was also available. Beyond these general parameters the evidence of record relating to the agreement between the parties was in considerable dispute. In several enumerations of error appellant challenges the sufficiency of the evidence to support the verdict. The errors enumerated include the grant and/or denial of several motions for directed verdict plus the denial of appellant's motions for judgment n.o.v. and for new trial. The issues raised by these enumerations will be dealt with below, but the standard utilized in the discussion of each will be the "any evidence" test. That is, the evidence will be construed to uphold rather than to upset the verdict. Speir v. Williams, 146 Ga.App. 880(1), 247 S.E.2d 549 (1978); Short v. Riles, 144 Ga.App. 463(4), 241 S.E.2d 580 (1978).

1. Appellant's first enumeration cites as error the trial court's denial of its motion for directed verdict on the ground that appellant was entitled to a judgment in its favor "as a matter of law." Appellant argues that the terms of the written contract executed by the parties precluded any recovery by appellee. This written contract was entered into after appellee had begun construction of his "chicken house," but before it had been completed, and before the first batch of chickens had been delivered to him. The evidence also discloses the existence of one or more oral agreements pre-dating and/or post-dating this written contract. Appellant initiated this lawsuit after appellee had refused to surrender upon demand the second batch of chickens. The evidence conflicted as to whether the written contract covered the second batch of chickens. However, even if the written contract was applicable to the second batch of chickens, said contract did not bar appellee's counterclaim.

Appellant cites two separate provisions of the written contract in support of its argument. The first is the understanding between the parties "That upon termination of the Agreement for breach of the condition mentioned herein, [appellee] does hereby fully release [appellant] ... from any claims or liability of any character whatsoever." We find nothing in the circumstances in this case which would have precluded appellee from waiving his rights under the contract. See Young v. John Deere Plow Co., 102 Ga.App. 132(1), 115 S.E.2d 770 (1960). However, nowhere in the contract was the "condition," the breach of which would trigger the waiver, specifically mentioned or defined. In any event, there was ample evidence that appellant, rather than appellee, had breached the contract. Thus, this provision of the contract did not bar appellee's recovery on his counterclaim.

Secondly, the contract provided: "This agreement, and the attached schedule, are separate from any other agreement made or to be made between the parties and represent the complete contract. Any variations from the terms hereof must be authorized by further written agreement signed by both parties hereto." Appellant argues that this provision precluded any other agreement not in writing and signed by both parties. To the contrary, however, this provision clearly recognized the possibility of other, separate agreements between the parties, notwithstanding the language that the written contract plus compensation schedule represented "the complete contract." Compare Touche, Inc. v. Dearborn, 161 Ga.App. 188(3), 291 S.E.2d 35 (1982). Therefore, this provision also did not bar appellee's recovery.

2. Appellant's Enumerations No. 2 and 7 cite as error two adverse rulings by the trial court relating to Count I of appellee's counterclaim. The first of these rulings was the trial court's denial of appellant's motion to dismiss Count I of the counterclaim for failure to plead fraud and deceit with sufficient specificity. This motion was made and denied immediately preceding the trial of the case. "The proper remedy for seeking more particularity is by motion for a more definite statement (Code Ann. § 81A-112(e) [now OCGA § 9-11- 12(e) ] ) at the pleading stage or by the rules of discovery thereafter." Cochran v. McCollum, 233 Ga. 104, 105, 210 S.E.2d 13 (1974). Thus, the trial court did not err in denying appellant's motion to dismiss. Lawyers Co-operative Pub. Co. v. Huff, 142 Ga.App. 45(2), 234 S.E.2d 842 (1977). See also Eubanks v. Davis, 160 Ga.App. 250, 286 S.E.2d 743 (1981).

Appellant also contends that the trial court erred in denying its motion for directed verdict on the ground that there was insufficient proof of fraud, deceit or misrepresentation. Although appellee utilizes the words "fraud," "deceit" and "misrepresentation," Count I of the counterclaim fell short of setting forth with sufficient particularity a cause of action for fraud. See generally Simpson v. Ga. State Bank, 159 Ga.App. 310(3), 283 S.E.2d 278 (1981); 12 EGL Fraud and Deceit, § 13 (1977 Rev.). Despite the unfortunate use of these words, however, Count I did set forth a claim for breach of contract such as would sufficiently apprise appellant of the nature of the claim so that appellant could defend against it. See Thomas v. Ronald A. Edwards Const. Co., 163 Ga.App. 202(1), 293 S.E.2d 383 (1982). There was evidence of record to support appellee's allegations of an oral agreement between him and appellant by which he would construct a chicken house to appellant's specifications in return for a continuing supply of chickens from appellant so that he could recoup his investment and make a profit. There was also evidence that appellant breached this agreement by insisting upon additional expenditures for plant and equipment which appellee was financially unable to meet, which in turn resulted in appellant's early confiscation of appellee's flock and the cessation of relations between the parties. Because fraud was not in issue in this case, and because there was evidence to support appellee's claim for breach of contract, the trial court did not err in denying appellant's motion for directed verdict as to Count I of the counterclaim.

3. Enumerations No. 3 and 8 challenge Count II of the counterclaim relating to lost profits. Count II alleged damages in the amount of $15,000.00 for profits lost as the result of bad feed provided by appellant to appellee. Appellant first argues that the issue of lost profits should not have been in the case at all because the relationship between the parties was that of bailor and bailee. Thus, appellant continues, title to the chickens remained in it as bailor and appellee had no rights therein. This argument is entirely specious. The written contract between the parties clearly provided that appellant received compensation based upon the number of eggs produced and their hatchability. Appellant was responsible for providing the feed for the chickens. There is a patent correlation between the feed given the chickens and the number of eggs produced; i.e., if the feed given to the chickens makes them sick or kills them, the number of eggs produced by the flock will decline. Thus, the trial court did not err in denying appellant's motion to dismiss Count II of the counterclaim.

Appellant also enumerates as error the trial court's denial of its motion for directed verdict on the issue of lost profits. The gravamen of this enumeration is appellant's contention that appellee did not prove his damages in this regard with sufficient specificity. Appellee in his counterclaim alleged $15,000.00 in lost profits on the subject flock of chickens in 1979. At trial appellee testified as to his profit (revenue less named expenses) from his first flock of chickens in 1978; his profit was approximately $11,700.00. By comparison to the 1978 flock his production in 1979 was about the same, but his hatchability was superior until the introduction of the allegedly bad feed. His 1979 flock was larger than his 1978 flock, and he estimated his lost profits for 1979 to be approximately $8,000.00; he had already received some revenue from the 1979 flock.

"Lost profits are recoverable as damages if such are shown with reasonable certainty." DeVane v. Smith, 154 Ga.App. 442, 443, 268 S.E.2d 711 (1980). Even though appellee did not show $15,000.00 in lost profits, his testimony in the case at bar provided evidence estimating with...