Powell v. Ga.

• Decision Date: 28 January 1905
• Citation: 49 S.E. 759,121 Ga. 803
• Court: Georgia Supreme Court
• Parties: POWELL v. GEORGIA, F. & A. RY. CO.

49 S.E. 759

121 Ga. 803

POWELL

v.GEORGIA, F. & A. RY. CO.

Supreme Court of Georgia.

Jan. 28, 1905.

APPEAL—REVIEW—RULINGS ON EVIDENCE—CONTRACT—CONSIDERATION—ACTION FOB SERVICES—INSTRUCTIONS.

1. In order to properly present for decision by the Supreme Court the question whether or not error was committed in admitting given evidence, the complaining party must make it appear not only that the evidence was admitted over his objection, but also what grounds of objection he urged before the trial court at the time the evidence was offered.

2. Where the promoters of a railroad mutually agree to render without compensation their personal services in furthering the enterprise, one of them who performs services in pursuance of the agreement cannot exact payment therefor from the railway corporation receiving the benefit of the same. Such an agreement does not lack a good and valuable consideration; and, though the corporation be not a party thereto, it may, as matter of defense, negative any implied promise on its part to pay for the services so rendered by showing that they were performed for its benefit under that agreement. If one of the parties to it is a partnership, the members of which assent to its terms and undertake to comply therewith, services performed by one of the partners are legally to beregarded as having been rendered by the partnership, and not by him as an individual.

3. The court fully, fairly, and correctly submitted to the jury the contention of the plaintiff that the services performed by him were rendered, not in pursuance of any such agreement, but under circumstances from which the law would imply a promise by the defendant company to pay therefor what they were reasonably worth.

4. A charge to the effect that it is incumbent on a plaintiff to make out his case, in every essential element, "to the satisfaction of the jury, " is not calculated to so operate to his prejudice as to afford cause for a new trial, when it appears that he made no request to charge as to how the burden of proof resting upon him could be successfully carried.

5. In charging upon the contentions of the defendant, the court did not express any opinion as to what had been proved; the evidence fully warranted the finding of the jury; and for no reason assigned should the verdict be set aside.

(Syllabus by the Court.)

Error from City Court of Bainbridge; B. B. Bower, Judge.

Action by M. D. Powell against the Georgia, Florida & Alabama Railway Company. Judgment for defendant. Plaintiff brings error. Affirmed.

T. S. Hawes and Toomer & Reynolds, for plaintiff in error.

Donalson & Donalson, for defendant in error.

EVANS, J. The plaintiff below, M. D. Powell, brought suit against the Georgia, Florida & Alabama Railway Company, formerly the Georgia Pine Railway Company, for $6,000, in which amount the plaintiff alleged the defendant company was indebted to him for services rendered by him in procuring its right of way, superintending the construction of its roadbed, etc." The defendant filed an answer denying all liability in the premises. On the trial the plaintiff introduced evidence tending to show he had performed services in behalf of the company as alleged, which services he had been induced to perform under an implied, if not an express, promise on the part of the company's officials to pay therefor. The defendant, on the other hand, introduced evidence in support of its contention that such services as were rendered by the plaintiff were performed by him in compliance with an understanding between the promoters of the enterprise, of whom he was one, that they were to receive no compensation for their services in building the road, as they, in their capacity of stockholders, would be mutually benefited by the construction of the road, which they contemplated selling at a profit after it was completed between two designated points. The jury returned a verdict in favor of the defendant, whereupon the plaintiff made a motion for a new trial, which was overruled by the court, and he excepted.

1. It appears that Powell Bros., a partnership composed of the plaintiff and his brother E. R. Powell, subscribed to stock, and Was largely interested in the success of the project of building the road, as were Henry Bruton and J. P. Williams, other promoters of the enterprise. The defendant offered witnesses who testified that both of the members of the firm of Powell Bros, agreed that they would, in order to subserve the interests of that firm, contribute their personal services in securing a right of way and superintending the construction of the road, provided Bruton and Williams would likewise, without compensation, lend their aid in promoting the project, and that it was under this arrangement, which was assented to and carried out by all parties at interest, that the plaintiff rendered the services performed by him. The defendant also tendered in evidence a letter dated July 27, 1898, of which the following is a copy: "Mr. J. P. Williams, Prest., Savannah Ga.—Dear Sir: Your favor of the 9th inst. just received. As I have been away from home for two weeks or would have replied to you earlier. I don't think Mr. Henry Bruton will attempt to put in any account for services rendered the G. P. Ry. Co. as he very well understands the agreement in regards to salaries, before the commencement of the construction of the road, and I will certainly oppose paying Mr. Bruton for any services he has rendered to the G. P. Ry. Co., as I did hard work and for a long time, but did not expect one cent for it, as it was my understanding that we was to attend to the work without any salaries for services. Yours truly, E. R. Powell." Complaint is made in the motion for a new trial that the court erred in admitting this letter "over plaintiff's objection, " but what objection he urged against its admission is not stated. Such an assignment of error cannot be considered by this court, for the reason that it is incumbent on a plaintiff in error to make it appear what were the grounds of objection stated to the trial court at the time the evidence objected to was offered by the opposite party. Tilley v. McJunkin, 116 Ga. 426, 42 S. E. 741; Butts v. State, 118 Ga. 750, 45 S. E. 593. It is true in the present case, as the Chief Justice remarked was true in the case of Frey v. Macon Sash Co., 112 Ga. 244, 37 S. E. 376, that, "in making the motion for a new trial, reasons were assigned why the evidence was inadmissible; but, as has been frequently held, this court cannot consider such reasons where it does not appear that they were presented to the trial judge at the time the evidence was offered."

2. In view of the evidence summarized...