Plymouth Record Corp. v. Books, Inc.

Citation92 Ga.App. 753,90 S.E.2d 336
Decision Date28 September 1955
Docket NumberNo. 35824,No. 2,35824,2
PartiesPLYMOUTH RECORD CORPORATION v. BOOKS, Incorporated
CourtUnited States Court of Appeals (Georgia)

Syllabus by the Court

1. The plea of set-off stated a cause of action and the trial court did not err in overruling the general demurrer thereto.

2. It is not the policy of the law to require a party to an action to litigate when he is willing to surrender to his adversary more than the latter is entitled to under the undisputed evidence in the case. Since the evidence here demanded a finding that the verdict in favor of the plaintiff and the amount voluntarily written off by the latter left a judgment against the defendant slightly less than his liability, the grant of a new trial, on the sole ground that the plaintiff had no right to remit to the defendant the amount of $20 so written off, was error.

Plymouth Record Corporation filed an action on account against Books, Inc., in the Civil Court of Fulton County in the amount of $3,571.20 for phonograph records purchased and delivered to it. The defendant answered denying the debt and setting up in the cross action as amended that Harold Karp and Sam Feldman, president and manager of the defendant corporation, entered into an agreement with Thomas Brusk on behalf of plaintiff, both orally and in writing, a copy of which agreement is attached to the amendment, under the terms of which defendant received plaintiff's exclusive sales agency in the Atlanta area for Plymouth records. The alleged consideration of this agreement was that defendant should pay to plaintiff the sum of $1,702.02 and to its subsidiary the sum of $782.06, which represented the debts of another corporation for which defendant had no legal liability, and that in such agreement plaintiff also agreed to reimburse defendant in amounts not to exceed $350 each for three advertisements of the product to be run in Atlanta newspapers. Defendant alleged that plaintiff breached its agreement by refusing to reimburse for advertising costs and further breached its agreement by selling its products to J. M. High Company and permitting that company to advertise plaintiff's records while defendant's contract was in effect, causing it to sustain a loss of $750 in connection with its sale of plaintiff's records.

General demurrers to the defendant's cross action were overruled, and this judgment was assigned as error. Upon the trial of the case, issues were attempted to be made as to whether plaintiff owed defendant for all the advertising, for half of it, or for none of it; also whether defendant was entitled to credit for the sums of $1,702.02 and $782.06 because of failure of consideration of the contract, or whether plaintiff was entitled to recover the full sum of $3,571.20 which defendant admitted on cross-examination would be due it if no set-off were allowed. This represented verdicts in six possible amounts, and the court charged the jury the various amounts and that a verdict should be brought in for the plaintiff in one of such sums. The possible verdict of $3,178.20 would have represented the amount of plaintiff's account less $393 advertising. The other possible verdicts as charged by the court were $3,571.20; $2,877.08; $3,374.70; $1,087.12; or $1,283.62. The jury returned a verdict of $3,198.20, and judgment was entered accordingly. Thereafter plaintiff petitioned that $20 be written off as clerical error and the verdict reduced to $3,178.20, whereupon the court revoked the first judgment and entered judgment in accordance with the reduced amount. Defendant made his motion for a new trial which was later amended by adding 4 special grounds. The court granted the motion, stating that, while he was morally certain that the verdict returned by the jury was due to a clerical or typographical error in the sum of $20, he did not believe the verdict could be reformed by the plaintiff's writing off this sum, and that, under these circumstances, he felt obliged to grant the new trial. This judgment is also assigned as error.

Julian E. Gortatowsky, Willingham, Gortatowsky & Morrison, Atlanta, for plaintiff in error.

Arnold S. Kaye, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Since the defendant's plea of set-off specifically alleged that the exclusive sales agency agreement was in full force and effect on March 17, the date of the alleged breach by plaintiff in selling its products to J. M. High Company, and further alleged that plaintiff breached his agreement by selling records to such competitor on that day, the plea was not subject to the general demurrer interposed. The written contract pleaded by the defendant, in the form of a letter to him dated January 15, 1954, granted a 60-day 'exclusivity' with a statement that it 'may be renewed at the expiration date, the same as our arrangements with department stores.' The petition also alleges that March 17 was 'during the effective period of this exclusive sales contract' and that defendant was granted exclusive sales rights 'between the dates of January 15 and May 15, 1954.' The allegations are accordingly sufficient to state a breach during the life of the agency agreement, and the trial court did not err in overruling the general demurrer.

2. The president of the defendant corporation testified that the amount sued for was due and owing to the plaintiff, except that he contended (a) that he was entitled to a credit of $393 for advertising, due to the fact defendant had agreed 'to give us $1,050 advertising and I used up $393 and I applied that against it,' and also (b) that defendant breached the contract by selling records to a competitor during its life, for which reason he was entitled to a credit of the amounts paid to obtain the agreement and to damages for the resale loss due to such breach.

As to the first contention, the defendant pleaded as to the contract between the parties, a letter written from the plaintiff to it, the letter stating: 'If we receive from you immediately your order for 500 Remington records, you may place a 64"' three-column full length ad similar to Gimbel's ad. We will go along on Plymouth alone on a 50/50 basis, ads to run consecutive weeks--of course, your purchases must warrant continuation of advertising allowances to this extent.' It was undisputed that no order for Remington records was placed. By amendment the defendant added that plaintiff 'also agreed to reimburse defendant for one-half of the cost of three newspaper ads to be run by the defendant in a local newspaper in the greater Atlanta area, advertising plaintiff's records, the entire cost of which three ads to plaintiff should not exceed the sum of $1,050.00. In keeping with said agreement defendant shows that it did on or about the 24th day of January, 1954, run an ad in the Atlanta Journal, the cost of which was $786.' (Emphasis added.) The figure $786 appears to be an error, however, as defendant testified on the trial, 'That ad cost us $393, but in keeping with the agreement I only billed him for $350.' On cross-examination, however, he attempted to deny an agreement to be reimbursed on a 50-50 basis and testified, 'They agreed to give us $1,050 advertising and I used up $393 and I applied that against it.' Defendant thus puts three constructions upon the agreement in regard to advertising, two of which are in conflict with his sworn pleadings, never stricker or withdrawn, in which he pleads the contract upon which the right to set-off is based. A party to a suit will not be allowed to disprove an admission made in his pleadings...

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7 cases
  • Kem Mfg. Corp. v. Sant
    • United States
    • Georgia Court of Appeals
    • February 18, 1987
    ...the trial court did not err in dismissing defendant's counterclaim for breach of fiduciary duty. Cf. Plymouth Record Corp. v. Books, Inc., 92 Ga.App. 753(1), 90 S.E.2d 336 (1955); see also Koch v. Cochran, 251 Ga. 559, 307 S.E.2d 918 (1983); Pope v. Kem Mfg. Corp., 249 Ga. 868(1), 295 S.E.2......
  • Londeau v. Davis
    • United States
    • Georgia Court of Appeals
    • October 3, 1975
    ...41 Ga.App. 38(1), 152 S.E. 136; Alexander Hamilton Institute v. Van Landingham, 44 Ga.App. 606, 162 S.E. 304; Plymouth Record Corp. v. Books, Inc., 92 Ga.App. 753, 90 S.E.2d 336. There was no error therefore, in rendering judgment in the absence of a jury trial as to Mrs. 4. However, the tr......
  • Wise, Simpson, Aiken & Associates, Inc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc.
    • United States
    • Georgia Court of Appeals
    • July 20, 1978
    ...Dixon v. Cassels Co., 34 Ga.App. 478(2), 130 S.E. 75, and Wilkinson & Wilson v. Thigpen, 71 Ga. 497(3) with Plymouth Record Corp. v. Books, Inc., 92 Ga.App. 753, 756, 90 S.E.2d 336. See generally 31A C.J.S. Evidence § 299, p. 764, and 31A C.J.S. Evidence § 381, p. In Murray County v. Picker......
  • Glennville Hatchery, Inc. v. Thompson
    • United States
    • Georgia Court of Appeals
    • November 30, 1982
    ...132 Ga. 71, 63 S.E. 1103 [ (1909) ]. Here the verdict is one of simple arithmetical calculation." Plymouth Record Corp. v. Books, Inc., 92 Ga.App. 753, 758, 90 S.E.2d 336 (1955). Accordingly, appellee must write off the sum of $7,000.00 from his recovery, otherwise the judgment is reversed.......
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