Shaw v. Jones, Newton & Co.

• Citation: 66 S.E. 240,133 Ga. 446
• Parties: SHAW v. JONES, NEWTON & CO.
• Decision Date: 17 November 1909
• Court: Supreme Court of Georgia

66 S.E. 240

133 Ga. 446

SHAW v. JONES, NEWTON & CO.

Supreme Court of Georgia

November 17, 1909

Syllabus by the Court.

Exceptions pendente lite cannot be considered unless error is assigned thereon, either in the main bill of exceptions or in the Supreme Court by counsel for plaintiff in error, before the argument begins.

"The opinion of a witness is not admissible in evidence when all the facts and circumstances are capable of being clearly detailed and described so that jurors may be able readily to form correct conclusions therefrom."

Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge.

The declarations of an alleged partner are not admissible to prove that he is the partner of another who denies the existence of the partnership.

An error in admitting evidence may be cured by the adverse party subsequently introducing evidence which removes the objection which originally rendered the evidence admitted against him incompetent.

One of the contentions of the plaintiffs being that the defendant was a partner of one operating a business in competition with that sold by defendant to plaintiffs, it was competent to show as a circumstance tending to prove such partnership that the defendant told the plaintiffs that he would guarantee that they would have no trouble with such person.

As it is the province of the court to construe a written contract and to charge the jury as to the legal effect thereof, an instruction in which this is done does not contravene the rule against the expression or intimation by the judge of his opinion as to what has or has not been proved.

Upon the breach of a contract of sale of the good will of a business, the measure of damages is the loss suffered by the purchaser by reason of the wrongful acts of the seller constituting the breach, and in estimating such damages all the facts and circumstances tending to show the extent thereof may be considered by the jury; but, if the plaintiff fails to furnish sufficient data to enable the jury, with a reasonable degree of certainty and exactness, to estimate the actual damages sustained by the purchaser, then his recovery will be restricted to nominal damages.

A ground of a motion for a new trial should be complete in itself, or rendered so by an exhibit to the motion. Accordingly it has been repeatedly ruled that a ground based on the admission or rejection of evidence presents nothing for adjudication when such evidence is not set forth therein either literally or in substance, nor attached as an exhibit to the motion.

Error from Superior Court, Grady County; W. N. Spense, Judge.

Action by Jones, Newton & Co., against M. A. Shaw. Judgment for plaintiff, and defendant brings error. Reversed.

S. A Roddenbery and Roscoe Luke, for plaintiff in error.

W. G Warnell and Ledford & Terrell, for defendant in error.

FISH C.J.

Jones Newton & Co. sued M. A. Shaw for breaches of a contract of sale by defendant to plaintiffs of certain turpentine property, including leases, specified personalty connected therewith and the good will of the business, and for the failure of the defendant to comply with his agreement to put in good condition a designated telephone line used in connection with the business. The defendant demurred generally to the petition. The demurrer was overruled, and exceptions pendente lite were filed by the defendant. There was a verdict in favor of the plaintiffs, and to the overruling of a motion for a new trial the defendant excepted, but failed to assign error upon the exceptions pendente lite either in the main bill of exceptions or in this court.

1. The well-established rule of practice as to the assignment of error upon exceptions pendente lite, stated in the first headnote, need no elaboration. Nicholls v. Popwell, 80 Ga. 605, 6 S.E. 21 (9); Stover v. Adams, 114 Ga 171, 39 S.E. 864 (1).

2. A witness was permitted to testify in behalf of the plaintiffs that a turpentine still operated at a designated place would be in competition with the still sold by defendant to plaintiffs. Defendant objected to the admission of this testimony, on the ground, in substance, at the opinion of the witness was not admissible, because, if the facts and circumstances were given by him, the jury could readily draw their own conclusion therefrom on the question of competition. Under the familiar rule stated in the second headnote, the objection should have been sustained. Brunswick, etc., R. Co. v. Hoodenpyle, 129 Ga. 174, 58 S.E. 705 (5), and cases cited; Churchill v. Jackson, 132 Ga. 666, 64 S.E. 691 (4); Pride v. State, 133 Ga. --, 66 S.E. 259, and cases cited.

3. One of the plaintiffs was permitted to testify that "defendant's man, Futrell," moved the hands from the place sold by defendant to plaintiffs. Defendant objected to the testimony, on the ground that the witness should testify from his own knowledge as to Futrell being the defendant's man. As nothing appears to indicate that the witness was not testifying from his own knowledge, the objection was not good.

4. The court permitted Jones, one of the plaintiffs, to testify as follows: "We wanted Mr. Powell to sign the papers. He said 'No,' that Mr. Shaw always signed the papers but gave me his word that he would not bother any timber in that territory." This was objected to by the defendant on the ground that the sayings of Powell were not competent to bind the defendant. One of the contentions of the plaintiff was that Shaw, the defendant, after selling his turpentine business to them, operated a turpentine business, with Powell as his partner, in competition with the business of the plaintiffs, in violation of his agreement not to do so. Defendant denied the alleged partnership between himself and Powell. The testimony objected to was a declaration of Powell which the plaintiffs evidently offered as tending to prove the existence of the...