Jenkins v. Tastee-Freez of Ga., Inc.
| Decision Date | 05 December 1966 |
| Docket Number | 3,No. 42185,2,TASTEE-FREEZ,Nos. 1,42185,s. 1 |
| Citation | 114 Ga.App. 849,152 S.E.2d 909 |
| Parties | Mrs. Hildred M. JENKINS v.OF GEORGIA, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Grounds of special demurrer to the petition must be renewed or expressly insisted on after the petition has been amended in a material respect if they are to be thereafter relied on. The grounds of special demurrer which were overruled, as complained of here, were not renewed or otherwise insisted on after the petition had been amended in a material respect, and the enumeration of error complaining of the overruling of such grounds of demurrer, therefore, presents nothing for consideration.
2. There was some evidence from which the jury would have been authorized to find that the defendant was not a partner in the business in the operation of which the indebtedness sued on was incurred, and that she was merely a surety for her husband. The court, therefore, erred in directing the verdict for the plaintiff.
3. The entry of the judgment for interest on the indebtedness did not follow the verdict in this respect, since it found no interest, and entry of such judgment was error.
Thomas W. Elliott, Decatur, for appellant.
Allen & Baker, T. M. Allen, Jr., Decatur, for appellee.
Tastee-Freez of Georgia, Inc., sued Mrs. Hildred Milligan Jenkins and her husband, James B. Jenkins, on an indebtedness alleged to have arisen out of a franchise contract executed by the defendants who were alleged by the petition to have been partners in the operation of the franchise business. Only Mrs. Jenkins was served, and she only appeared and defended the suit, and she alone will hereinafter be referred to as the defendant. In her answer and in a special plea filed defendant contended that the obligations sued on were not hers but were the obligations of her husband incurred in relation to the business operated under the franchise contract, and that with regard to those debts defendant was a mere surety and not a partner. At the conclusion of the evidence the trial court directed a verdict for the plaintiff in the amount sued for as shown by the evidence and as set forth in an amendment to the petition. The defendant appealed to this court, and in her enumeration of errors contends that the trial court erred in overruling her renewed grounds of special demurrer and in directing a verdict against her, and in entering judgment against her including interest, in that the judgment so entered does not follow the verdict directed, and in that it shows on its face that it was entered prior to the direction of the verdict.
1. The defendant demurred to Paragraph 1 of the plaintiff's petition on the ground that it was multifarious in that it sought to combine in one count a suit on checks, open accounts and rent. The plaintiff amended its petition twice. The second amendment, offered and allowed on the trial of the case to conform to the evidence introduced without objection, materially changed the amounts sought to be recovered on each of the items sued on. While the defendant renewed her grounds of demurrer after the first amendment, after which the court overruled them, she did not renew or re-insist upon them after the second amendment. The enumerated error complaining of the order overruling the appellant's grounds of special demurrer, therefore, presents nothing for our consideration. Smith v. Dalton Ice Co., 45 Ga.App. 447(1), 165 S.E. 144; Oxford v. Shuman, 106 Ga.App. 73, 85(5a), 126 S.E.2d 522; Banister v. National Fire Ins. Co., 106 Ga.App. 507(1), 127 S.E.2d 330.
2. The plaintiff's evidence showed conclusively that the defendant and her husband signed a Tastee-Freez 'Operator's Agreement' as lessees of designated premises located in Atlanta. This contract appears to be a franchise contract by which James B. Jenkins and Hildred L. Jenkins were authorized to do business at the location designated under the name and style of 'Tastee-Freez,' and under the terms of which the plaintiff therein designated as lessor was obligated to furnish to the lessees at a stipulated price per gallon the mix to be used in preparing 'Tastee-Freez.' By the terms of the agreement the lessees obligated themselves to use certain equipment referred to in the contract in dispensing 'Tastee-Freez,' to purchase certain other supplies from 'lessor' (franchise holder), and to perform certain other covenants not here material. Four days after executing the agreement with the plaintiff the defendant and her husband executed three separate contracts with the owner of the premises (and owner of other equipment located therein) where the business was to be conducted, each contract denominating the defendant and her husband as a partnership. However, the president of the plaintiff corporation, who personally negotiated the contract on behalf of the plaintiff, testified that he did not see or know of those instruments until after the plaintiff had advanced all the credit here sued on. Under these circumstances the plaintiff was not authorized to rely on those instruments as an estoppel against the defendant under the doctrine pronounced in Carmichael v. Greer, Lake & Co., 55 Ga. 116, and like cases.
It is true that the contract entered into between the plaintiff corporation and the defendant was signed by both by the defendant and her husband who were collectively designated as 'lessee,' and this fact would tend to indicate that they signed as partners or joint venturers. Such an inference was not demanded, however, and it was, therefore, insufficient as the basis for the direction of the verdict. Code Ann. § 110-104. While it is also true that a married woman may by appropriate contract become a partner with her husband and be jointly liable with him for partnership debts (Schofield v. Jones, 85 Ga. 816(2), 821, 11 S.E. 1032, and Butler v. Frank, 7 Ga.App. 655(2), 658, 67 S.E. 884), there is no room to doubt that under the provisions of Code § 53-503, and under the many cases interpreting and applying it, a married woman may be heard to explain the capacity in which she signed such an instrument and to show that she in fact undertook the obligation thereof merely as surety for her...
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Ron Eason Enterprises, Inc. v. McColgan, 57838
...interest found to be due on the principal sum in order that the plaintiff be entitled to recover interest." Jenkins v. Tastee-Freez of Ga., 114 Ga.App. 849(3), 152 S.E.2d 909, 912. "(T) he trial judge was without authority to add interest to (the) judgment without a direction to do so in th......
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Aston Mills, Inc. v. Suntek Industries, Inc., 77277
...found to be due on the principal sum in order that the plaintiff be entitled to recover interest. [Cit.]" Jenkins v. Tastee-Freez, 114 Ga.App. 849, 852(3), 152 S.E.2d 909 (1966); Ron Eason Enterprises v. McColgan, 151 Ga.App. 106, 107(2), 258 S.E.2d 761 (1979). "[T]he trial judge was withou......
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Giant Peanut Co. v. Carolina Chemicals, Inc., 49678
...to the judgment, although interest was specifically denied by the jury. This was error. See Code § 110-301; Jenkins v. Tastee-Freez of Ga., Inc., 114 Ga.App. 849(3), 152 S.E.2d 909. If the verdict had been silent as to the allowance of interest, a more complex question would be before us, b......
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...in the case sub judice was whether or not the defendant had signed the note as surety for her husband. See Jenkins v. Tastee-Freez of Ga., Inc., 114 Ga.App. 849, 152 S.E.2d 909; Cohen v. Gotlieb, 108 Ga.App. 122, 132 S.E.2d 93; Atlas Subsidiaries of Delaware, Inc. v. Davis, 110 Ga.App. 765,......