Partridge v. Hollinshead

• Decision Date: 26 July 1898
• Citation: 105 Ga. 278,30 S.E. 787
• Parties: PARTRIDGE. v. HOLLINSHEAD et al.
• Court: Georgia Supreme Court

30 S.E. 787

105 Ga. 278

PARTRIDGE.

v.HOLLINSHEAD et al.

Supreme Court of Georgia.

July 26, 1898.

Appeal—Record—Brief of Evidence—Contract by Committee—Personal Liability.

1. A document purporting to be a brief of evidence, and approved as such by a trial judge, becomes a part of the record in the case to which it relates, and, if the plaintiff excepts to the granting of a nonsuit, he may, if he so elects, specify such a brief as a part of the record, and have a transcript of the same sent up by the clerk of the trial court, instead of incorporating such brief in the bill of exceptions.

2. Persons who, as the "building committee" of a named "institute, " make with another a contract for materials with which to build a school house, are, whether such "institute" has or has not a legal existence, personally liable for a breach of such contract, when it is shown that they intended to bind themselves individually, and not to be acting for any principal.

(Syllabus by the Court.)

Error from superior court, Lincoln county; Seaborn Reese, Judge.

Action by George W. Partridge against T. E. Hollinshead and others to recover for goods sold and delivered. On the trial plaintiff was nonsuited, and he brings error. Reversed.

Colley & Sims, for plaintiff in error.

M.. P. Reese, for defendants in error.

LITTLE, J. On the call of this case, the defendants in error submitted a motion to dismiss the writ of error, on the ground, among others, that, notwithstanding the bill of exceptions was sued out to the grant of a nonsuit, the evidence was not brought up in the bill of exceptions, but was only set out in the transcript of the record, and contended that, under the law, the evidence should have been embodied in the bill of exceptions, and that there was no authority for bringing it up otherwise in this class of cases. While it is true that, by the provisions of section 4253 of the Code of 1882, it was declared that "the brief of evidence on a motion for new trial, filed and approved according to law, is hereby declared to be a part of the record of the case to which it applies, and need not, except by reference thereto, be embodied in the bill of exceptions, " it was, prior to the passage of the act of 1889, which will be hereafter referred to, held by this court that, under the tenth rule of court, which provides: "A brief of the oral and a copy of the written testimony in the case shall be incorporated in the bill of exceptions, or be attached thereto as an exhibit, when presented to the judge for his certificate, in which latter case it shall be identified as true by the signature of the judge thereupon, "—in all cases where no motion for a new trial was made the brief of evidence should be embodied in the bill of exceptions, or attached thereto and properly identified by the signature of the judge. Mann v. Archer, 69 Ga. 767; Hightower v. Flanders, Id. 772; McMillan v. Davis, 71 Ga. 866; Hodges v. Roberts, 79 Ga. 212, 9 S. E. 424. However, under the provisions of the act of 1889, as codified in sections 5528 and 5529 of the Civil Code, the rule above referred to has been modified. By paragraph 1 of section 5528 it is provided: "If the case is not one in which a judgment on a motion for a new trial is to be reviewed, the plaintiff in error shall plainly and specifically set forth the errors alleged to have been committed, and shall incorporate in the bill of exceptions a brief of so much of the written and oral evidence as is material to a clear understanding of the errors complained of, " etc.; while section 5529 provides: "If the plaintiff in error shall so elect, he may have such brief of so much of the evidence as is necessary to a clear understanding of the errors complained of, approved by the judge and made a part of the record and sent up by the clerk as a part...