Goldstein v. Ipswich Hosiery Co., 38948

• Decision Date: 13 September 1961
• Docket Number: No. 38948,No. 1,38948,1
• Citation: 104 Ga.App. 500,122 S.E.2d 339
• Parties: Harry S. GOLDSTEIN et al. v. IPSWICH HOSIERY COMPANY, Inc
• Court: Georgia Court of Appeals

Page 339

122 S.E.2d 339

104 Ga.App. 500

Harry S. GOLDSTEIN et al. v. IPSWICH HOSIERY COMPANY, Inc.

No. 38948.

Court of Appeals of Georgia, Division No. 1.

Sept. 13, 1961.

Rehearing Denied Sept. 29, 1961.

Syllabus by the Court

The general grounds of the motion for a new trial and the thirty-six special grounds added by amendment are considered and disposed of in the opinion, together with the five grounds assigned as error upon the overruling of the defendants' motion for judgment notwithstanding the verdict.

1. An appellate court is not compelled to order certified and sent up copies of the record unless in the opinion of the appellate court additional portions are needful or necessary in order to adjudicate fully and fairly the errors assigned.

2. The charge of bad faith made in paragraph 13 of the defendants' answer had no basis, and the error, if any, in its being stricken by the trial court was harmless.

3. The mere request contained in a letter of transmittal of a guaranty agreement did not bring about a modification of the agreement.

4. (a) Under the facts of this case, where a contract of guaranty bears the same date as the contract which it seeks to guarantee, the reasonable inference as to the intention of the parties is that both the contract and the guaranty would be effective the same date.

(b) Under the facts of this case, there was sufficient evidence as to the value of an item to authorize the jury to find its value.

5, 6, 7. There is no merit to grounds 1, 2, 3, 4, and 5 assigned as error in the overruling of the motion for judgment notwithstanding the verdict.

8. The evidence was sufficient to support the verdict and judgment.

9. Under the facts of this case, the trial court did not err in failing to grant a mistrial on the motion of the defendants on the basis that the jury was qualified with respect to Weiss as defendant, although he was not served and was not a party to the case.

10, 11. Grounds 2, 3, and 4 of the amended motion for new trial have no merit.

12. It was not error to refuse requested charges, as asserted by special grounds 5 and 6, as discussed in these numbered divisions of the opinion.

13, 14. There is no merit in special grounds 7 and 9 of the amended motion for new trial.

15. The error asserted in special ground 10 of the amended motion for new trial was harmless to the complaining party, and does not constitute a reason for reversal.

16, 17, 18. There is no merit in special grounds 11, 12, and 13 of the amended motion for new trial.

19. Special ground 14 is incomplete.

20. Special grounds 15 and 16 of the amended motion for new trial complain of error which was against the plaintiff, and not detrimental to the defendants, who cannot complain.

21. Special ground 17 of the amended motion for new trial does not assert error harmful to the complainant.

22. Reasonably interpreted, the words of the trial judge complained of are not subject to being construed as an expression of an opinion by the judge. Special ground 18 has no merit.

23, 24, 25. Special grounds 19, 20, 21, 22, and 25 of the amended motion for new trial have no merit.

26. Special grounds 23, 24, and 26 of the amended motion for a new trial were abandoned, and there is no merit to special grounds 27 and 28.

27, 28, 29, 30, 31, 32, 33. The following special grounds of the amended motion for new trial have no merit: 29, 30, 31, 32, 33, 34, 35, and 36.

Plaintiff brought this action against defendants in three counts for breach of an alleged guaranty contract for the defaults of the Acme Sales Co., Inc., praying for a balance owing to plaintiff, the value of certain items Acme failed to return to plaintiff, the cost of redyeing, refinishing and repackaging certain hosiery returned by Acme to plaintiff, and attorney fees in each count. The jury returned verdicts against defendants in the amounts prayed for in counts 1 and 2 of the petition and found for the defendants as to count 3.

The agreement between Ipswich Hosiery Co. Inc. and Acme Sales Co. Inc. reads in part as follows:

'* * * November 16, 1953 * * *.

'This agreement shall be effective for one year from November 16, 1953, and shall continue thereafter from year to year, and notwithstanding the foregoing, (Rider attached)

'This agreement may be terminated by either party upon 60 days' written notice subject to the final adjustments and settlement of accounts between the parties. Upon termination consignee shall forthwith return consignor's hosiery, equipment and proceeds, and consignor is authorized to enter the premises where its merchandise and equipment are located, and remove, at consignee's expense, including reasonable attorney's fee, the same and funds belonging to consignor, without liability therefor. This agreement shall automatically terminate, at the election of the consignor, upon (1) the filing by or against the consignee of a voluntary or involuntary petition in bankruptcy, (2) the appointment of a trustee, assignee or receiver of the consignee's property; (3) the sale of its business; (4) the transfer or removal of consignor's hosiery from said location(s), except at retail; (5) the assignment hereof without consignor's written consent; (6) the default of the consignee in any of the terms and provisions of this agreement. No waiver of any breach or change of any of the terms hereof shall be effective unless in writing and any waiver by consignor shall operate as to the specific instance and shall not be construed as a waiver of any succeeding breach of the same or any other term, agreement or condition. * * *

'Effective when assented to by both parties.

'Assented to:

'Acme Sales Co. Inc.

'By/s/Arthur Weiss

Pres. * * *

'Ipswich Hosiery Co. Inc.

'By /s/ Melvin J. Gordon

Vice Pres. * * *.'

Defendants' motion for new trial, as amended by thirty-six special grounds, was overruled, to which exception was taken.

Defendants also filed a motion for judgment notwithstanding the verdict on five grounds which was overruled and denied, to which exception was also taken.

Plaintiff, on February 6, 1961, made an oral motion to strike paragraph 13 of defendants' answer, which was sustained orally and confirmed by written order entered on April 21, 1961, nunc pro tunc as of February 6, 1961. To this order the defendants also excepted.

Arnall, Colden & Gregory, H. Fred Gober, Atlanta, for plaintiffs in error.

John M. Sikes, Jr., Lipshutz, Macey, Zusmann & Sikes, Atlanta, for defendant in error.

BELL, Judge.

1. The plaintiff in its brief for the first time raises the issue that there was no proper basis for the defendants' motion for judgment notwithstanding the verdict in that there had not previously been made a motion for directed verdict which is a condition precedent to a motion for judgment notwithstanding the verdict. Southwind Trucking Co. v. Harvey, 96 Ga.App. 715, 101 S.E.2d 223. The record before this court as approved by the trial judge states that the recital of facts contained in the motion for judgment notwithstanding the verdict is approved as true and correct, and this motion contained in the record recites that the defendants moved for a directed verdict as to counts 1 and 2. The bill of exceptions also recites that a motion for a directed verdict had been made. The bill of exceptions is approved as correct by the defendants' attorney and the trial judge. Under these circumstances the attack on the motion for judgment notwithstanding the verdict comes too late, and furthermore is contradicted by the record before this court.

The case of Northwest Atlanta Bank v. Zec., 196 Ga. 114, 26 S.E.2d 183, does not compel an appellate court to order certified and set up copies of the record unless in the opinion of the appellate court the additional portions are needful or necessary in order to fully and fairly adjudicate the errors assigned. As we view the record before us as it refers to this point in issue, it is sufficiently complete to permit a full and fair adjudication on the point and no additional record is required.

2. The defendants' first contention is that the trial court erred in striking paragraph 13 of their answer which in substance alleged that the plaintiff was guilty of bad faith in bringing the action since 'the guarantee of these defendants was only for a period of one year' and this limitation was wilfully and deceitfully withheld from the knowledge of the court and from the allegations of the petition. The defendants contend that the oral motion to strike would not lie to this defensive pleading, since the answer was partially good. In view of our holding elsewhere in this opinion that the guaranty was not limited to one year, the charge of bad faith made in paragraph 13 of the defendant's answer had no basis, and the error, if any, was therefore harmless.

3. The next contention of the defendant is that the letter by which Arthur Weiss, one of the three guarantors, returned the guaranty to the plaintiff qualified the guaranty and limited its duration to one year. The guaranty was dated November 16, 1953, and did not contain any limitation as to time. The letter by which the guaranty was transmitted to the plaintiff a few days afterward, in its pertinent part, reads as follows:

'I am enclosing a copy of the agreement between your company and ours and also the guarantee signed by the stock holders of Acme Sales Co., Inc.

'Since your contract states that it is effective for one year from November 16th, both Mr. Julius and Harry Goldstein have requested that the guarantee be good for that one year. If necessary at the end of this period they will renew the guarantee for the succeeding year.' (Emphasis added.)

The plaintiff's reply to the request contained in this letter to limit the guaranty to one year reads: 'I notice your comment that the agreements are for one year and request that Messrs. Julius and Harry Goldstein's guarantee run for one year also. If you will note, the...