J. T. Tice Co v. Evans, (No. 14804.)

• Court: Georgia Court of Appeals
• Writing for the Court: BLOODWORTH
• Citation: J. T. Tice Co v. Evans, 123 S.E. 742, 32 Ga.App. 385 (Ga. App. 1924)
• Decision Date: 10 June 1924
• Docket Number: (No. 14804.)
• Parties: J. T. TICE CO. et al. v. EVANS.

32 Ga.App. 385

123 S.E. 742

J. T. TICE CO. et al.

v.EVANS.

(No. 14804.)

Court of Appeals of Georgia, Division No. 1.

June 10, 1924.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED.]

Error from City Court of La Grange.

Action by A. Y. Evans against the J. T. Tice Company and another. Judgment for plaintiff, and defendants bring error. Affirmed in part and reversed in part.

A. Y. Evans sued J. T. Tice Company and the J. T. Tice Company, Incorporated, for damages on account of the breach of a contract and for commissions due under the contract on account of the sale of calendar racks to certain mills. The petition is as follows:

"The petition of A. Y. Evans, as plaintiff, against J. T. Tice Company, a company composed of J. T. Tice and R. J. Higgenbotham, and the J. T. Tice Company, Incorporated, a corporation duly incorporated and chartered under the laws of the state of Georgia, as defendants, respectfully shows:

"(1) That said defendant company is a resident of said county, and that J. T. Tice and R. J. Higgenbotham, as principals of said company, are residents of said county, and have been doing business under the name of the J. T. Tice Company.

"(2) That the J. T. Tice Company, Incorporated, is a corporation duly incorporated and chartered under the state laws of Georgia, with its principal place of business and office in La Grange, Troup county, Ga.

"(3) That on the —— day of——, 1920, the said J. T. Tice Company was duly chartered and incorporated by the superior court of this said county at the February term of the city court, and that the said J. T. Tice Company, Incorporated, on the day aforementioned, absorbed and took over the said J. T. Tice Company and assumed all the said J. T. Tice Company's liabilities, assets, contracts, and business.

"(4) That the said defendant company has injured and damaged your petitioner in the sum of $3,000 by reason of the following facts, to wit:

"(5) That on the 17th day of September, 1919, your petitioner did enter into a contract with said company to act as their agent and salesman above the Mason and Dixon line, your petitioner to receive as compensation for his services thereunder 40 per cent. of net proceeds on all his sales of calendar racks made by him at any mill above the Mason and Dixon line, together with additional compensation for repeat orders.

“(6) That in said contract, a copy of which is hereto attached and made a part of this petition, and marked Exhibit A, your petitioner faithfully performed his duties as set out in the contract.

"(7) That defendant company has damaged your petitioner in the above-stated sum of $3,000 by not complying in good faith with their part of the contract, in that they were negligent in filling orders, that they turned out bad work, and made substitutions not called for in your petitioner's original orders, and in not shipping goods according to sample furnished your petitioner by defendant company to use in making sales.

"(8) That by reason of the above your petitioner was unable to secure orders which otherwise he would have gotten, causing him the damage mentioned above in the above-stated sum.

"(9) That said defendant company is indebted to your petitioner in the further sum of $5,691.98 under the statement of your petitioner of sales, commissions, and payments, copy of which statement is hereto attached, made a part of this petition, and marked Exhibit B.

"(10) That this amount is due your petitioner under the contract above mentioned and described as Exhibit A as commissions due him on sales enumerated in said statement.

"(11) That your petitioner has made demand upon defendant's company for said sum, which demand has been refused, although the said sum is past due.

"Wherefore your petitioner prays judgment for the full sums of $3,000 damages and the further sum of $5,691.98 with interest at 8 per cent. from date under the above statement of facts, and also that said defendant company be required to appear personally or by attorney at the next term of said city court of La Grange to answer your petitioner's complaint, and he will ever pray."

The contract attached to the original petition is as follows:

"This contract made and entered into this September 17, 1919, between the J. T. Tice Company of West Point, Georgia, said county, and A. Y. Evans, La Grange, Troup county, Georgia. It is agreed that the J. T. Tice Company, party of the first part, is to pay A. Y. Evans, party of the second part 40 per cent. of net proceeds on all bis sales of calendar racks made by him at any mill above the Mason and Dixon line. He is also to receive 2 per cent. on all orders going from any mill ninety days after initial order is placed, and 1 per cent. during the following twelve months. Party of the second part is to pay all expenses necessary for him to make sale to any mill, letting all orders pass through the J. T. Tice Company office at West Point, Georgia. Contract remains in force until January 1st, 1920, and thereafter until either party sees fit to withdraw the same.

"[Signed] R. J. Higgenbotham, Mgr.,

"J. T. Tice, Company.

"Accepted: A. Y. Evans, Party of Second Part."

The plaintiff, in response to demurrers, amended the petition and amendments thereto, in which amendments he alleged more specifically the items of damage, the acts of negligence on the part of defendant, the commissions due by defendant, and increased the amount of damage previously alleged. The fifth paragraph of the original petition was so amended as to read:

"That on the 17th day of September, 1919, your petitioner did enter into a contract with said company to act as their agent and salesman above the Mason and Dixon line, your petitioner to receive compensation for his services thereunder 40 per cent. of net proceeds on all his sales of calendar racks made by him at any mill above the Mason and Dixon line, and about January 1. 1920, made a verbal agreement with defendants whereby he was to receive additional compensation of $6.25 per pair racks for repeat orders."

The defendants answered, denying the material allegations of the petition, and by amendment to their answer alleged that "the J, T. Tire Company, a corporation, have never had any contract whatever with the said plaintiff"; also that plaintiff was indebted to the J. T. Tice Company in a named sum, as shown by a full accounting between plaintiff and J. T. Tice Company, and because of damages arising out of plaintiff's representations and his performance of said contract.

The jury rendered a verdict "Against the defendants J. T. Tice Company, $1,030 principal and $llo.56 interest; also J. T. Tice Company, Incorporated, $4,000.73 principal and $455.59 interest, with cost of suit. Total principal $5,090173; total interest, $571.15." Upon this verdict a judgment was rendered against the company and against the corporation for the respective amounts found against them.

The defendants made a motion for a new trial, which was overruled, and they excepted.

Raymond Martin, of La Grange, and Sidney Holderness, of Carrollton, for plaintiffs in error.

Harry M. Breed, of La Grange, and Terrell & Terrell, of Greenville, for defendant in error.

BLOODWORTH, J. (after stating the facts as above). The record in this case is quite voluminous, and we have for consideration a motion to dismiss the writ of error, a motion to continue, various amendments to the petition, amendments to a number of these amendments, about a half hundred demurrers to the petition and the amendments thereto, and 52 grounds of the motion for a new trial. In the headnotes we have covered every question raised in the record, and in addition thereto we will discuss fully headnotes 1, 5, 10, 12, 14, 17, and 21.

1. A motion to dismiss the bill of exceptions was made upon the grounds that (1) the evidence is not briefed as required by law; (2) the defendant in error was not served with a copy of "law brief" as required by the rules of court; (3) the brief of evidence was not "properly approved and identified by the trial judge." We will discuss these grounds of the motion in their order.

(1) While the evidence is far from brief it is sufficiently briefed.

"Where there has been a substantial compliance with the law as to bringing a brief of evidence to this court, such a brief will not be disregarded although it may not be made in absolute compliance with the statute." Crumbley v. Brook; 135 Ga. 723 (2), 70 S. E. 655.

Nor is such a brief a sufficient reason for dismissing a writ of error. Fleming v. Roberts, 114 Ga. 634 (1), 40 S. E. 792; Saint Amand v. Lehman, 120 Ga. 253 (3), 47 S. E. 949.

(2) "Failure to serve counsel of the opposite party with the brief of counsel for the plaintiff in error, as required by rule 15 of this court (Civil Code of 1910, § 6339), is not ground for dismissal of a writ of error." Marietta Fertilizer Co. v. Gary, 22 Ga. App. 604 (3), 96 S. E. 711, and cases cited.

(3) The record shows that the brief of evidence was "approved as correct and ordered filed as a part of the record" by the trial judge.

As to grounds 1 and 3 of the motion to dismiss, see, also, Park's Ann. Code, § 6090 (a); Ga. L. 1911, p. 150, § 3; Allen v. State, 29 Ga. App. 213 (1), 114 S. E. 583, and citations. The motion to dismiss the bill of exceptions is overruled.

5. Ground 1 of the second demurrer, demurring to paragraph 2 of the amendment to the petition for the reason that the parolagreement changed the terms of the written contract, is without merit. Since the contract, with this amendment thereto, is a part of the petition, we will construe it in the light of the other allegations of the petition, in testing it as against a demurrer.

The petition shows that the original contract was between plaintiff and the J. T. Tice Company, and that after the execution of the original contract "the said J. T. Tice Company was duly chartered and incorporated * * * and that the said J. T. Tice Company, Incorporated, absorbed and took over the said...