Reeves v. Tankersley, 35029

• Decision Date: 17 March 1954
• Docket Number: No. 35029,No. 1,35029,1
• Citation: 81 S.E.2d 209,89 Ga.App. 797
• Parties: REEVES v. TANKERSLEY
• Court: Georgia Court of Appeals

Page 209

81 S.E.2d 209

89 Ga.App. 797

REEVES v. TANKERSLEY.

No. 35029.

Court of Appeals of Georgia, Division No. 1.

March 17, 1954.

Syllabus by the Court.

1. The charge of the court was not erroneous, in that it submitted to the jury an issue raised only by evidence admitted without objection, where, upon objection to the evidence as unsupported by the pleadings, the pleadings could have been amended so as to raise the issue.

2. The court erred in admitting evidence of certain damages which the plaintiff had not sought in his petition to recover, where the evidence was objected to on this ground.

Tankersley brought suit against Reeves, alleging a parol agreement, under which he was to oversee farming operations on Reeves' farm for seven months, beginning on April 1, 1952. Reeves agree: to furnish Tankersley and his family a house; to pay him $100 per month; and to give him one-tenth of the seed cotton produced on the farm that year. Tankersley performed his duties as overseer for seven months, until the crop was harvested, but Reeves refused to furnish the house, paid Tankersley's salary of $100 per month for only five months, and refused to give Tankersley one-tenth of the seed cotton produced. 110 bales of cotton were produced which, including seed, were worth $25,550 or more; Reeves therefore owed Tankersley $2,555. The prayer was for an accounting, for judgment for $3,000 or such other amount as an accounting would show to be due and unpaid, and for further relief.

Reeves denied these allegations and further alleged in his answer: His part of the contract was to pay Tankersley $100 per month and to give him one-tenth of the lint cotton made, over and above all expenses of the farming operation. He had a house ready for Tankersley and his family. Tankersley owed him $210 as board for seven months, and the $500 in cash and seven months' board were more than Tankersley was entitled to, for Tankersley had not complied with the contract, but had left the farm and its operation for days at a time.

The verdict was in favor of the plaintiff, for $2,464.78. Reeves' motion for a new trial was denied, and he excepts to that judgment, insisting only upon the assignments of error made in the special grounds of his motion.

Stevens & Stevens, Thomson, for plaintiff in error.

Knox & Neal, Thomson, for defendant in error.

NICHOLS, Judge.

1. Error is assigned on a part of the charge submitting to the jury the contentions of the parties as to a bonus of $25 per month to be paid to Tankersley, 'if things worked out all right,' and 'if Reeves made good on the farm,' according to the plaintiff, or 'if Reeves made good in a sawmill operation,' according to the defendant. It is said that a bonus is a gift which cannot be sued for and recovered if not given; and it is also contended that terms providing for a bonus were not pleaded, and that it was not shown that the defendant made good either in farming or in the sawmill business. Both parties submitted evidence to the effect that a bonus of $25 per month was to be paid to Tankersley, upon fulfilment of a condition....