Southern Feed Stores v. Sanders

• Decision Date: 21 May 1942
• Docket Number: 14056.
• Citation: 20 S.E.2d 413,193 Ga. 884
• Parties: SOUTHERN FEED STORES v. SANDERS.
• Court: Georgia Supreme Court

20 S.E.2d 413

193 Ga. 884

SOUTHERN FEED STORES v. SANDERS.

No. 14056.

Supreme Court of Georgia

May 21, 1942

Syllabus by the Court.

1. An auditor's findings of fact, although made on conflicting evidence, will not be disturbed where such findings are supported by evidence and exceptions thereto have been disapproved by the lower court.

2. A petition for accounting, in which the plaintiff sets out facts indicating that something would be found due to him and resorts to equity to preserve the records of the business which are in possession of the defendant, from removal or destruction pending the accounting, is not subject to dismissal on general demurrer on the ground that it alleges no cause of action, nor is it subject to special demurrer calling for a bill of particulars for the exact amounts.

3. Mutual disregard of an executory contract, so as to change a provision regarding the division of profits between parties is not accomplished by the intention of only one of the parties thereof to treat the stipulation as no longer binding, without the concurrence of the other party.

4. Where one party to a written contract relating to a store keeps the books and records of transactions between them, and denies access thereto or detailed statements thereof to the opposite party who has requested such information, and such opposite party is thereby unable to discover an improper charge by the party concealing the same, the statute of limitations does not run in favor of the party withholding such facts.

J. H. Sanders brought his petition against Southern Feed Stores, a corporation, for an equitable accounting and for injunction. He alleged, that under a written contract between the parties he had operated a store for Southern Feed Stores over a period of years, whereby the profits were to be divided between them equally; that Southern Feed Stores had kept the books and records, which he had not been permitted to see or to have a detailed statement of the accounts, for which reason he averred he had no means of setting out the amounts, but his share of the profits had not been paid, one item of which was rents of the store in the sum of $40 per month over a period of ninety months, which Southern Feed Stores had improperly deducted and retained. The plaintiff waived discovery, and prayed for an injunction against the defendant's removing or destroying the records, for an auditor, and for judgment. The defendant demurred to the petition. By amendment the plaintiff sought an accounting, and sued for a profit alleged to have been improperly charged by Southern Feed Stores on goods billed to the store; but this contention was later expressly abandoned.

In its answer and plea Southern Feed Stores set up that the written contract was changed by mutual consent and oral agreement of the parties, so that, in consideration of defendant allowing plaintiff to do some credit business, the rents of the store were to be deducted before a division of the profits; and that instead of being indebted, a named amount was owed by Sanders to Southern Feed Stores.

The case was referred to an auditor, who overruled the defendant's demurrer. After hearing evidence, the auditor made findings of fact and of law. The fifteen numbered findings of fact, in substance, sustained the plaintiff's contentions of the original contract, without change, the operation of the store thereunder, the keeping of records by the defendant, and its failure to give detailed statements although requested, and found against the defendant's expense items claimed against the business and other items claimed against Sanders, finding that Southern Feed Stores had improperly deducted the rents, one half or $1,440 of which was due to Sanders by Southern Feed Stores. The six numbered findings of law, stated briefly, overruled the defendant's demurrers, found that Sanders was an employee entitled to half of the profits without deduction for rents, to interest from annual dates on rents improperly charged, to an accounting; and contained rulings on admissibility of evidence. To the auditor's report the defendant filed exceptions of fact and of law. These were disapproved, and exceptions pendente lite were entered. Thereafter a judgment was taken for principal and interest in favor of plaintiff against the defendant. The case is here for review.

T. J. Lewis and Harry M. Wengrow, both of Atlanta, for plaintiff in error.

J. C. Murphy and Bond Almand, both of Atlanta, for defendant in error.

REID Chief Justice.

1. The exceptions of fact attack each and all of the auditor's findings of fact. These findings related to the contract, whether it was changed by mutual consent, the operation of the store thereunder, and finally a determination of whether the rents had been improperly charged and retained by the defendant; all of which sustained the contentions of the plaintiff and found against those of the defendant, resulting in a finding for Sanders of half of the rents. On most of the questions involved there was conflicting evidence, but sufficient evidence was adduced to authorize the auditor to find as he did. Accordingly, the exceptions of fact and assignments of error on the disapproval thereof are without merit. Peyton v. McMillan, 145 Ga. 179(7), 180, 88 S.E. 937; Cowart v. Singletary, 140 Ga. 435(2), 79 S.E. 196, 47 L.R.A.,N.S., 621, Ann.Cas.1915A, 1116.

2. Exception 1 of the exceptions of law complains of the overruling of the demurrers to the petition. The demurrers were that the allegations were insufficient to constitute a cause of action; that no amounts were set out; and that the...