Talbotton R. Co. v. Gibson

• Decision Date: 17 December 1898
• Parties: TALBOTTON R. CO. v. GIBSON.
• Court: Georgia Supreme Court

32 S.E. 151

106 Ga. 229

TALBOTTON R. CO. v. GIBSON.

Supreme Court of Georgia

December 17, 1898

Syllabus by the Court.

1. The petition substantially complied with the law requiring the cause of action to be set forth "in orderly and distinct paragraphs, numbered consecutively."

2. There is no reason why a salaried officer of a corporation elected and serving from year to year, whose yearly compensation is fixed by a resolution of its board of directors, may not, if it becomes necessary for him to sue for the recovery of an amount so due him, make out his claim against the corporation in the form of an account, and bring suit upon it as such.

3. Where a corporation is sued by A., and pleads payment evidence that the plaintiff authorized B., who was at the time its secretary and treasurer, to collect from the corporation the amount which it owed the plaintiff, and to appropriate it towards the payment of an account which he owed B., and that B. did so collect and appropriate the money, is admissible under such plea.

4. Where the requisite foundation is not laid for the introduction of books of account, they are inadmissible.

5. Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it, and to aid the jury in arriving at the truth of the matter, is admissible.

6. An order sustaining a motion to "nonsuit a part of a plaintiff's cause of action" is an erroneous ruling.

Error from superior court, Talbot county; W. B. Butt, Judge.

Action by T. N. Gibson against the Talbotton Railroad Company. From the judgment, both parties bring error. Reversed.

A. J Perryman, J. J. Bull, and Brannon, Hatcher & Martin, for plaintiff.

J. H. Worrill and C.J. Thornton, for defendant.

FISH J.

1, 2. There was no merit in the demurrer to the plaintiff's petition. The petition substantially complied with the law requiring the cause of action to be set forth "in orderly and distinct paragraphs, numbered consecutively." See Wingate v. Bank, 95 Ga. 1, 22 S.E. 37. It was not demurrable, because the plaintiff declared upon an account, and not upon a special contract. The bill of particulars attached to the petition showed that the account sued on was for several years' salary, due by the defendant corporation to the plaintiff, for his services as its president; the years in which the services were rendered, and the respective amounts due for each year, being specified. We know of no reason why a salaried officer of a corporation, elected and serving from year to year, whose compensation for each year is fixed by resolution of its board of directors, may not, if it becomes necessary for him to sue for the recovery of an amount so due him, make out his claim against the corporation in the form of an account, and bring suit upon it as such. It has been repeatedly held by this court that, under the old statutory for which was prescribed by the act of 1847 for "an action upon an account," the plaintiff could recover upon proof of a special agreement to pay the amount charged in the account. Johnson v. Quinn, 52 Ga. 485; Id., 51 Ga. 289; Roberts v. Harris, 32 Ga. 542; Schmidt v. Wambacker, 62 Ga. 321. See Bright v. Railroad Co., 88 Ga. 535, 15 S.E. 12; Kirkland v. Dryfus (Ga.) 29 S.E. 612. As the act of 1847 did not undertake to say in what cases "an action upon an account" could be brought, but simply provided a form which might be used for such an action, these decisions clearly show that an action upon an account may be brought for goods sold or services rendered, whether there is a special agreement, or not, to pay a specified sum for such goods or services.

3. One ground of error, alleged in the main bill of exceptions, is that the court below sustained the motion of the plaintiff "to rule out all of the testimony introduced by the defendant, and to direct a verdict for the plaintiff for $600, with interest from the 1st day of May, 1892." The record does not disclose the grounds upon which this motion was predicated. Being left to mere conjecture to ascertain what these grounds were, we are at a loss to know upon what theory the court sustained this motion. S.W. Thornton, a witness for the defendant, testified "that he was secretary and treasurer of the Talbotton Railroad Company that in 1891 he paid the salary of Mr. Gibson as president of the road, and that he paid the salary of Mr. Gibson from May, 1891, to May, 1892, as well as all other salaries that were due him; that he was carrying on a mercantile business in Talbotton, and that Mr. Gibson was elected president of the Talbotton Railroad Company, and that he was elected secretary and treasurer of the said company; that Mr. Gibson ran an account at his store, and agreed and directed him to collect his salary from the Talbotton Railroad Company, and to credit it to his (Mr. Gibson's) account; *** and that, acting under this agreement and instruction from Mr. Gibson, he collected Mr. Gibson's salary from the Talbotton Railroad Company as president, and gave him credit upon his account for it." This testimony was certainly relevant, under the defendant's plea of payment, which, though defective, was not demurred to, and the court should not have ruled it out for, if the plaintiff did authorize Thornton to collect from the Talbotton Railroad Company the amount which it was due the plaintiff on account of his salary, and to credit it upon an account held against him by Thornton, and Thornton did so, then the indebtedness of the railroad company to the plaintiff was extinguished. This testimony, unimpeached and uncontradicted, would have sustained the plea of payment. There was a direct conflict, on this point, between the evidence of S.W. Thornton and that of Gibson, the plaintiff; but, Thornton's testimony being...