Scott v. Imperial Hotel Co

• Decision Date: 08 February 1947
• Docket Number: No. 31362.,31362.
• Citation: 42 S.E.2d 179
• Parties: SCOTT. v. IMPERIAL HOTEL CO.
• Court: Georgia Court of Appeals

42 S.E.2d 179

SCOTT.

v.IMPERIAL HOTEL CO.

No. 31362.

Court of Appeals of Georgia, Division No. 1.

Feb. 8, 1947.

Rehearing Denied April 2, 1947.

Syllabus by the Court.

1. Where accord and satisfaction was plead to an action of complaint on the ground that the same subject matter of this suit had been submitted in a negotiation for settlement between the plaintiff and the defendant which culminated in a purchase, which was actually executed by the payment of the money, of "every claim" of the plaintiff by the defendant corporation for $10,000, and the evidence was conflicting as to whether such subject matter was included or not in such purchase of "every claim" of the plaintiff against the defendant, that question was properly submitted to the jury for determination.

2. Since the jury found that the sum of $10,000 was paid the plaintiff by the defendant in final settlement of "every claim" of the plaintiff against the defendant, the jury were also authorized to find that the sum of $10,000 was a valuable consideration for "every claim" of the plaintiff against the defendant, including the subject matter of this suit.

3. Special ground one being an amplification of the general grounds, it is controlled adversely to the plaintiff in error by what is said in the other headnotes of this opinion.

4. Where there was oral and written evidence and the trial judge inaptly used the word "testimony" in several instances instead of the word "evidence, " when the charge is considered as a whole it is apparent that the jury understood that the words "testimony" and "evidence" were used to express the same idea and that they were to consider both the oral and the written evidence in making their findings.

5. The charge as a whole and particularly that portion which defined accord and satisfaction and pointed out that a consideration was necessary for an accord and satisfaction was not subject to the objection that it leaves the jury under the erroneous impression that a mere agreement without consideration to surrender a claim of the creditor when demanded by the debtor is sufficient to accomplish an accord and satisfaction of the creditor's claim.

6. The evidence authorized the verdict.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by O. E. Scott against Imperial Hotel Company for salary allegedly due plaintiff from defendant. To review an adverse judgment, plaintiff brings error.

Affirmed.

Winfield P. Jones, of Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy and Newell Edenfield, all of Atlanta, for defendant in error.

MacINTYRE, Judge.

1. This is suit by a former officer, Secretary & Treasurer, of the Imperial Hotel Company, the defendant, for his sal-ary as a corporate officer for the period September 30, 1944, until April 13, 1945. To the petition the defendant filed a plea denying liability and amended his original answer and also filed a plea of accord and satisfaction; the burden was upon the defendant to prove such plea, and the issue so made was submitted to a jury who found for the defendant. A judgment was entered, a motion for new trial overruled, and the plaintiff brings error.

On September 30, 1944, the plaintiff and Judge Robert Carpenter and his wife organized the defendant hotel company. Each of the parties held ten shares of its stock and its note for $6,000 due September 30, 1947. At the initial meeting of the incorporators it was decided that twenty shares of stock in the corporation would be sold to Guy A. Jones; it was resolved by the parties that no stockholder would sell his stock until he had first given an opportunity to the defendant company or its original stockholders to purchase it; it was also resolved that the company's fiscal year be fixed as of June 30, 1945.

On April 7, 1945, the plaintiff gave notice that his stock and note were for sale. The plaintiff and the executive vice-president of defendant company [Robert Carpenter] negotiated with each other for a sale of their respective interests. Offers were made on both sides.

After verdict, in passing on a motion for new trial, that view of the evidence which is most favorable to upholding the verdict must be taken. Johnson v. State, 69 Ga.App. 663, 26 S.E.2d 482; Vandeviere v. State, 58 Ga.App. 18(1), 197 S.E. 338.

The executive vice-president, Carpenter, testified in part as follows: "In settlement and in the negotiations for the settlement, what was said about the annual officers' salaries * * * I told him [the plaintiff], I says, I am not going to buy the corporate set-up at all now; whatever I give you is going to cut you off from the corporation; you are going to surrender every claim you have got with the corporation; and don't come telling me that you are entitled to part of the profits, you are not entitled to this, that or the other after we settle up. This will be final in that respect, I says, that is the only kind of condition, the corporation of individuals is going to buy this from you, we are going to close it out at whatever time we figure. * * * " Glenn Loudermilk testified that he was connected with the defendant hotel company as general manager and that he "was present at the time when Mr. Scott and Judge Carpenter were discussing and was there when the deal was actually put through and consummated. As to what was said by either of the parties with reference to whether or not the total consideration paid of $9,850 [the consideration alleged to have been paid the plaintiff by the defendant was $10,000 less an agreed discount of $150. Hereinafter the alleged consideration will be referred to as $10,000] included the officer's salary for Mr. Scott as secretary-treasurer, what it amounted to--well, it was implied that it was a final settlement in all details, a final settlement. You ask me as near as I can remember what was said about that particular item--well, it was just general discussion and the Judge just made the statement that it was a final settlement. Prior to that final deal Mr. Scott and I had discussions and Mr. Scott had undertaken to interest me in buying his stock. Mr. Scott did not make any statement in the negotiations that he was reserving the officer's salary as secretary and treasurer and would expect to be paid that in addition to the sum that was being paid him."

At the time of the completion of the transaction in question and the resignation of the plaintiff, the plaintiff had only worked approximately six and one-half months. He, however, testified that "in one conversation with the Judge I told him that I was entitled to an annual salary of $2500 from September 30, 1944, to the time I left, regardless of whether I was there as an officer the full 12 months. This took place in connection with the negotiations for the sale of my stock * * * I only mentioned that one time, " and later, after the close of the transaction, he wrote Judge Carpenter that he was claiming $2,237.29, and thereafter he filed the present suit for $1786.87. Thus, the jury could have found that there was some confusion or at least uncertainty as to the exact amount ofthe plaintiff's salary as secretary & treasurer which was due him during the negotiations and even up to the time of their completion.

The minutes of the initial meeting of the board of directors showed that the only stockholders were H. S. Carpenter, who was elected president at a salary of $5,000 per year, Robert Carpenter, who was elected executive vice-president at $3,000 per year, Guy Jones, who was elected vice-president at $1,200 per year, and the plaintiff, O. E. Scott, who was elected secretary & treasurer at $2,500 per year. Elsewhere the evidence showed that Scott was employed as an auditor for the company at $100 per month and that at the time of the present trade, which was followed immediately by his resignation, he had been paid this amount. Both of the Carpenters as well as the plaintiff Scott had set up on the books a drawing account which each of them used; no objection to this procedure was made by any of the stockholders or officers of the corporation. The evidence does not show that any salary as such was paid to the president, executive vice-president, vice-president or secretary & treasurer at the time of the negotiations or at the time of the consummation of the transaction.

The condition of the corporation was in this somewhat unsettled state of affairs as to such drawing accounts and as to the salaries of such officers since none of these salaries appear to have been paid as such but evidently remained undistributed or undisposed of in the treasury of the company as assets of the corporation. According to the plaintiff Scott, the negotiations in question finally led to a consummation of a...