Schafer Baking Co. v. Greenberg

• Docket Number: 24253.
• Decision Date: 25 May 1935
• Citation: 180 S.E. 499,51 Ga.App. 324
• Parties: SCHAFER BAKING CO. v. GREENBERG.
• Court: Georgia Court of Appeals

180 S.E. 499

51 Ga.App. 324

SCHAFER BAKING CO. v. GREENBERG.

No. 24253.

Court of Appeals of Georgia, First Division

May 25, 1935

Syllabus by Editorial Staff.

Expenses of litigation, including attorney's fees, are not recoverable in action for damages for mere breach of contract, unless it appears that defendant entered into contract in bad faith, or procured contract by fraud.

Defendant's mere refusal to pay claim held not stubborn litigiousness authorizing plaintiff's recovery of attorney's fees.

Recovery of attorney's fees held not authorized, where amount of defendant's liability as established by jury was $5,200, and amount claimed was $8,304.30.

Recovery of attorney's fees in action for damages for mere breach of contract must be predicated on clear showing of right thereto, since such recovery constitutes a penalty, and penalties are not favored.

Where judgment for $6,500 was affirmed on review on condition that defendant in error write off $1,300 allowed as attorney's fees, costs of bringing case to reviewing court were taxed against defendant in error.

Error from City Court of Savannah; Davis Freeman, Judge.

Suit by Nathan Greenberg against the Schafer Baking Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed on condition.

Gordon Saussy, J. T. Wells, Jr., and William L. Clay, all of Savannah, for plaintiff in error.

Abrahams Bouhan, Atkinson & Lawrence and Emanuel Kronstadt, all of Savannah, for defendant in error.

Syllabus OPINION.

BROYLES Chief Judge.

1. The petition as finally amended set out a cause of action, and none of the exceptions to the rulings upon the pleadings discloses reversible error.

2. Under the facts of the case it does not appear that the court erred in denying the defendant's motion to withhold from the jury certain interrogatories of a witness, and to order them returned to the commissioner before whom they had been taken, for the purpose of having the witness more fully answer the cross-interrogatories and for their proper execution and return, on the ground that the interrogatories had been improperly executed and that the witness had refused to answer fully certain specified cross-interrogatories, and had refused to attach thereto certain original documents called for therein.

3. This was a suit by Nathan Greenberg for damages for the alleged breach of a certain contract entered into by the plaintiff and Schafer Baking Company, the defendant. The petition alleged that the defendant, by a duly authorized agent signed the contract whereby it agreed to sell to the plaintiff certain real estate in the city of Savannah contingent upon the acceptance by the United States post office department of the said premises under lease as a garage; that thereafter said department accepted the premises; and that the defendant, after being notified of such acceptance, refused to perform the terms of the contract, and that such refusal was willful, malicious, and done in bad faith, and caused the damage set forth in the petition. The plaintiff claimed special damages in the sum of $287.50 (setting out the items thereof), the further sum of $8,016.80-representing the loss of net profits at the rate of $801.60 per annum for a period of ten years-which he would have received from the United States post office department if the contract had been carried out by the defendant, and the further sum of $2,500 for attorney's fees incurred by the defendant's "stubborn litigiousness and its willful breach...