Robert R. Sizer & Co. v. G.T. Melton & Sons

• Decision Date: 05 October 1907
• Parties: ROBERT R. SIZER & CO. v. G. T. MELTON & SONS.
• Court: Georgia Supreme Court

58 S.E. 1055

129 Ga. 143

ROBERT R. SIZER & CO. v. G. T. MELTON & SONS.

Supreme Court of Georgia

October 5, 1907

Syllabus by the Court.

Since the passage of the act of 1894 (Civ. Code 1895, § 4589) requiring exceptions to an auditor's report to be filed within 20 days, if an amendment can be allowed at all after the expiration of that time so as to add a new and distinct exception to those already made, it would at least be necessary to show some good and sufficient reason why the exception was not filed with the others in due time.

[Ed Note.-For cases in point, see Cent. Dig. vol. 42, Reference § 159.]

No such reason appears in the present case.

A party's answer to interrogatories are evidence against him as admissions, though the interrogatories may belong to a different case.

[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 739-743.]

The mere fact that a corporation sued out interrogatories for its "vice president and southern manager" in one case would not of itself render his answers admissible in another case as admissions of the company; and this is specially true where it did not appear that they were introduced in evidence by the principal.

A witness may refresh and assist his memory by the use of a written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper. In order to swear positively from the paper, it is essential that the witness should at some time have had personal knowledge of the correctness of the memorandum.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 868-892.]

If a subpoena duces tecum was served in 9 case pending before an auditor, and the papers called for were produced and used in evidence, the sufficiency of the subpoena to require the production and the ruling of the auditor on that subject became immaterial questions.

The general rule is that the measure of damages recoverable of a seller for failure to deliver goods sold is the difference between the contract price and the market value at the time and place for delivery; and it is incumbent on one who seeks to recover such damages to submit evidence as to the market price at the time and place for delivery, in order to recover compensatory damages.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1174-1201.]

To this general rule as to the measure of damages there are some exceptions, as, for instance, growing out of contracts in relation to the sale or furnishing of things which are not dealt with in the market, and have no market price in the ordinary sense of that term, or contracts in regard to the manufacture of certain articles.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 1182.]

It cannot be held as matter of law that the lumber, the sale of which is involved in the present case, had no market value, and that the auditor erred in referring to the market value in considering the measure of damages.

Where it was found in an auditor's report that a seller was not liable at all for alleged breaches of contracts to deliver lumber, if this finding should be affirmed, inaccuracies in his report, in discussing what would have been the measure of damages if the liability had existed, would be immaterial.

Where, in a civil case, after the judge had concluded his charge to the jury, by agreement of counsel he instructed the sheriff that, if the jury found a verdict by a certain hour, the judge and counsel should be notified, and that the court would reconvene to receive the verdict, but, if it should be found after that hour, they should prepare a sealed verdict and disperse for the night, and the verdict should be returned into court on the following day, and where the jury found a verdict before the hour designated in the judge's instructions, but without communicating with the court or counsel, sealed it up, delivered it to the clerk, and dispersed, and the verdict was returned into court on the following morning, the jury were called into the box, and in their presence and that of the court and counsel the verdict was published by the clerk, if counsel knew the facts, it was incumbent on them to object to the reception and publication of the verdict before it was done. If they failed to do so, it was a waiver of the irregularity.

None of the other rulings complained of require a reversal.

Error from Superior Court, Appling County; T. A. Parker, Judge.

Action by G. T. Melton & Sons against Robert R. Sizer & Co. From a judgment in favor of plaintiff, defendant brings error on separate bills of exceptions. Reversed.

G. T. Melton & Sons sued out an attachment against Robert R. Sizer & Co., a corporation of the state of New York. The declaration in attachment alleged, in brief, as follows: During the year 1901 Robert R. Sizer, doing business under the name and style of Robert R. Sizer & Co., was engaged in buying and selling lumber, and shipping it from the port of Brunswick, Ga., and had an office in that city. While so engaged, the plaintiffs entered into certain contracts with the defendant for the manufacture, sale, and delivery of certain lumber. The agreements were originally entered into verbally with Sizer, doing business under the name of Robert R. Sizer & Co., during the latter part of the year 1901. On or about January 1, 1902, Robert R. Sizer, without the knowledge of or notice to the plaintiffs, surreptitiously, clandestinely, and with intent to cheat and defraud the plaintiffs, incorporated the business under the laws of New York under the same name and style as that which he had been using previously. No change in letterheads or stationery was made, so as to put the public on notice of any incorporation. Plaintiffs did not know of the fact of the incorporation. The company gave written orders for the lumber under the same name and style, and the plaintiffs furnished it. The corporation, having thus ordered the lumber, received, used, and converted it. Defendant only paid for a part of the lumber so furnished, leaving a balance due of $1,665.45. Subsequently to the delivery of the lumber the plaintiffs learned that Sizer had transferred his business to Robert R. Sizer & Co., as a corporation, including all existing contracts and liabilities connected with the business, which were assumed and accepted by the company. After January 1, 1902, the corporation was the only person engaged in the lumber business in Brunswick under the name and style stated. It was alleged in a second count that the plaintiffs sold and delivered to the defendant the lumber, and that the defendant accepted it at the prices stated. In a third count it was alleged that the plaintiffs delivered the lumber to the corporation and the latter received it; that it was of the fair market value of the prices charged, as set out in an exhibit; and that the defendant made certain payments, but refused to pay the balance. Defendant demurred to the declaration, and objected to the amendments adding counts. The case was referred to an auditor. He found in favor of the plaintiffs $1,664.93 principal. A motion was made to re-refer the case for fuller report, which was overruled. Exceptions of law and fact were filed by the defendant. It was allowed to amend by adding an exception of law, which complained of the overruling of the demurrer. To this the plaintiffs excepted pendente lite. The exceptions of law were overruled. The exceptions of fact were submitted to a jury, who found against them. Defendant moved for a new trial, which was refused, and it excepted.

Kay, Bennet & Conyers, for plaintiff in error.

N. J. Holton and Harry F. Dunwody, for defendant in error.

LUMPKIN J.

In musical parlance, this case may be said to comprehend a theme and variations. The theme is the question of the liability of a corporation which obtained a character in the same name as that in which an individual (previously conducting the business) had agreed to buy lumber, gave orders for the lumber in that name, without any notice of change to the vendors, received and used it, recognizing the prices charged as proper, partly paid for what it received, and then declined to pay the balance due. The principal variation arises from a claim of recoupment set up by the defendant on account of an alleged noncompliance by the plaintiffs with their contracts as to the furnishing of the lumber. Minor variations include a motion to recommit the case to the auditor, objections to amendments, exceptions to the report, a motion for a new trial after verdict of the jury on the exceptions of fact, and a bill of exceptions and a cross-bill (all forming a sort of double chromatic scale, extending up and down, with the addition of a few extra notes beyond the 26 which would suffice to constitute a complete double scale).

1, 2. The auditor to whom the case was referred found in favor of the plaintiffs. The defendant filed exceptions to his report. After the lapse of 20 days, an amendment was tendered, making an additional exception. This amendment was allowed over objection, and this ruling has been brought here by a cross-bill of exceptions filed by the defendant in error. The ground of the exception was as follows: The auditor's report stated that "at the time appointed to take testimony, and before hearing the same, I heard argument upon the demurrers filed by the defendant, and I overruled the demurrers on all the grounds therein, all of which is a matter of record in said cause." The errors assigned were (a) that this was contrary to law; (b) because there is no record or entry made by the auditor overruling said demurrers; (c) because there could be no overruling of the demurrers, except by a formal order...