J.T. Tice Co. v. Evans

• Court: Georgia Court of Appeals
• Writing for the Court: BLOODWORTH, J. (after stating the facts as above).
• 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: 14804.
• Parties: J. T. TICE CO. ET AL. v. EVANS.

123 S.E. 742

32 Ga.App. 385

J. T. TICE CO. ET AL. v. EVANS.

No. 14804.

Court of Appeals of Georgia, First Division

June 10, 1924

Syllabus by the Court.

The motion to dismiss the writ of error is overruled.

The petition sets out a cause of action, and the general demurrer thereto was properly overruled. Even where a petition sets forth two distinct causes of action, and there is no special demurrer thereto, it will not be dismissed on general demurrer. Central of Ga. Ry. Co. v. Banks, 128 Ga 785 (1), 58 S.E. 352.

The second ground of the first demurrer is to paragraph 5 of the original petition, on the ground that it alleges that the plaintiff is to receive additional compensation on repeat orders, without putting the defendant on notice of how much additional compensation is claimed. This ground is without merit, because the original contract, which is attached to and made a part of the petition, shows that the additional compensation to be paid is 2 per cent. on repeat orders within 90 days, and 1 per cent. during the following 12 months.

The alleged defects in paragraphs 7 and 8 of the petition, which are attacked by grounds 3, 4, 5, and 6 of the demurrer which was filed on March 14, 1921, are cured by amendments.

Ground 1 of the second demurrer (filed September 26, 1921) attacking paragraph 2 of the amendment filed the same date is lacking in merit.

Grounds 2 and 3 of the second demurrer, each attacking paragraph 8 of the amendment to the petition filed September 26, 1921, are each without merit, as the alleged immateriality and indefiniteness of this paragraph were cured by additional amendments to the paragraph.

Ground 4 of the second demurrer, which attacks paragraph 10 of the amendment to the petition filed September 26, 1921, is without merit. To this paragraph is attached a list of the orders given, and the paragraph shows that the original order given by Renfrew Manufacturing Company was accepted by the defendant, alleges that Wentley, who gave the order, was the agent of the Renfrew Company, and, when read in connection with other portions of the petition, this paragraph is sufficiently specific in its allegations.

For no reason alleged did the court err in overruling ground 5 of the demurrer to paragraph 11 of the amendment of September 26, 1921. Moreover, this ground of the demurrer is not itself free from criticism, in that it fails to show the name of the party whose authority is questioned.

Grounds 6 to 38, inclusive (except ground 21), of the second demurrer, are all directed against the amendment filed September 26, 1921, and are answered, as far as necessary, by an amendment filed in October, 1921. Ground 21 of the demurrer is directed against paragraph 23 of amendment, and is answered by the striking of paragraph 23 in a later amendment.

The third demurrer contains three grounds, each directed against paragraph 2 of the amendment filed on September 26, 1921, and all of them are without merit.

An additional demurrer to the petition was filed on May 15 1922. This demurrer was to paragraph 8 of the amendment to the petition, filed September 26, 1921. This paragraph, in connection with Exhibit B, referred to therein, and in connection with other amendments to the petition, is sufficiently specific to withstand the demurrer.

The evidence of Higgenbotham, incorporated in ground 4, is in no sense newly discovered, and this ground shows no reason why a new trial should be granted.

(a) There is nothing in this ground of the motion which shows any legal reason why the judge should have continued the case.

Ground 5 refers to the absence of Higgenbotham, and is lacking in merit.

Under the particular facts of the case there is nothing in grounds 6, 7, 8, and 9 which would require the grant of a new trial.

Grounds 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 24, 36, 37, 38, 40, 44, 47, 48, and 49, in the light of the charge given and the facts of the case are without merit.

" 'Under repeated decisions of this court and of the Supreme Court each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.' McCall v. State, 23 Ga.App. 770, 99 S.E. 471; Roddenberry Hardware Co. v. Merritt, 17 Ga.App. 425, 87 S.E. 681, and citations." Franklin v. State, 28 Ga.App. 460(1-b), 112 S.E. 170. Under the foregoing ruling grounds 39, 41, 42, 43, 45, 46, 50, 51, and 52 will not be considered.

A new trial will not be granted because of the alleged error in the charge of which complaint is made in ground 13.

In ground 25 it is alleged that the verdict is excessive because of $6.25 to be allowed the plaintiff on repeat orders should have included only repeat orders submitted within 90 days from the original order. This ground is without merit. The written contract as verbally modified and set up in the amendment to paragraph 5 of the petition eliminated this reference to 90 days or 12 months, and simply provided for a commission of $6.25 per pair racks for repeat orders.

"Rulings upon the sufficiency of pleadings are not proper subject-matter for a motion for a new trial." Coulson v. State, 13 Ga.App. 148 (2), 150 (2), 78 S.E. 1108, and citations, page 151; Tompkins v. American Land Co., 139 Ga. 377(2), 77 S.E. 623, and citations. Under the foregoing ruling grounds 26 to 35, inclusive, of the motion for a new trial, are without merit.

There was no error in admitting the evidence complained of in ground 36, as this evidence was necessary in order to ascertain the amount of commissions due the plaintiff.

There is evidence to support the verdict against the J. T. Tice Company, Incorporated.

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,

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