Tifton, T. & G. Ry. Co. v. Butler

• Docket Number: 986.
• Decision Date: 09 April 1908
• Citation: 60 S.E. 1087,4 Ga.App. 191
• Parties: TIFTON, T. & G. RY. CO. v. BUTLER et al.
• Court: Georgia Court of Appeals

60 S.E. 1087

4 Ga.App. 191

TIFTON, T. & G. RY. CO. v. BUTLER et al.

No. 986.

Court of Appeals of Georgia

April 9, 1908

Syllabus by the Court.

In an action upon breach of contract where the damages are not liquidated, interest is not recoverable as such; but the jury in their discretion may increase the immediate amount of damages found by an allowance of interest. This discretion is to be exercised according to the facts and circumstances of each particular case, and is not the right to decide the question of interest by whim or caprice. It is merely the power of determining from the facts proved whether the injury incurred by the complaining party on account of the breach of the contract can, under all the circumstances, be adequately redressed without an allowance of interest or not.

Where the jury find in favor of increasing the damages by an allowance of interest, they should not add interest eo nomine, but should express one gross sum as damages.

(a) Verdicts are to have reasonable intendment; and surplusage or immaterial findings may be rejected in construing them and in entering judgment on them.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 789.]

(b) In an action of the character referred to above a verdict in the following form: "We, the jury, find for plaintiff $6,265.02 principal, and 7 per cent interest for four years and four months; $1,863.68 interest, $8,128.70 total"-is irregular, but not illegal. It will be upheld as a finding for $8,128.70 damages.

The court properly admitted in evidence, in corroboration of the plaintiffs' testimony, their books of account.

(a) Testimony is admissible which tends to prove a fact alleged in the petition, irrespective of the question whether when admitted it tends to establish right to recover or not.

(b) Testimony which tends to dispute the facts set up by the defendant as a defense, or to avoid the legal effect of them is admissible as against the objection that it is irrelevant.

(c) Where the question whether a corporation has made a certain contract is in issue, proof that subsequently to the time the contract is alleged to have been made the executive managing officers of the corporation, by declarations and conduct, recognized the existence of such a contract, is admissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 916-936.]

(d) Evidence which tends to establish any part of the plaintiff's case or to dispute any of the defenses thereto is admissible as against the objection that it is irrelevant.

The evidence sustains the verdict No error of law sufficient to require a reversal appears in the record.

Error from City Court of Moultrie; J. D. McKenzie, Judge.

Action for breach of contract by J. L. Butler and others, survivors, against the Tifton, Thomasville & Gulf Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Verdicts are to have reasonable intendment, and surplusage or immaterial findings may be rejected in construing them and entering judgment thereon.

The facts so far as the pleadings are concerned are fully set forth in the prefatory statements to the cases of Tifton Ry. Co. v. Bedgood & Co., 116 Ga. 945, 43 S.E. 257, and Butler v. Tifton Ry. Co., 121 Ga. 818, 49 S.E. 763. The present transaction is the same one involved in those cases. The plaintiff's petition having been adjudged good as against demurrer in the decision last cited, the case proceeded to trial and resulted in a verdict in favor of the plaintiffs. The defendants bring the case to this court on exceptions to the overruling of a motion for a new trial. The further facts necessary to an understanding of the points involved will be stated in the opinion.

Rosser & Brandon, J. H. Merrill, and J. A. Wilkes, for plaintiff in error.

Shipp & Kline, for defendants in error.

POWELL J.

1, 2. The action was for unliquidated damages arising from the breach of a contract; and therefore the allowance of interest was governed by the Civ. Code 1895, § 3800, which provides that "in all cases where an amount ascertained would be the damages at the time of the breach it may be increased by the addition of legal interest from that time till the recovery." The plaintiff sued for a named sum, with interest from a given time, alleged to be the date of the breach; and no demurrer or other objection was filed to this method of asserting the ad damnum. The court charged the jury: "If you should find from the evidence in favor of the plaintiff against the defendant, I charge you that it is within your discretion whether you shall give interest on that amount, if you find a certain amount, from the time it was due up until the present time, charging that (if you give interest) you cannot give more than 7 per cent., taking into consideration the facts and circumstances in arriving at the same. If you should find in favor of the plaintiff, the form of your verdict would be: 'We, the jury, find in favor of the plaintiff' so many dollars." The verdict was in the following form: "We, the jury, find for the plaintiff $6,265.02 principal, and 7 per cent. interest for 4 years and 4 months, $1,863.68 interest, $8,128.70 total." The plaintiff in error contends that the verdict is illegal because it finds interest eo nomine, and not as damages; that the charge quoted was erroneous, in that it encroached upon the discretion vested in the jury as to increasing the damages by taking interest into consideration.

Verdicts are to be upheld if capable of legal intendment, and surplusage or immaterial findings included therein may be disregarded. They will be construed in light of the pleadings, the issues made by the evidence, and the charge of the court. Southern Ry. Co. v. Oliver, 1 Ga.App. 734, 58 S.E. 244 (5, 6); Telfair County v. Clements, 1 Ga.App. 437, 57 S.E. 1059 (where the verdict was somewhat similar in form to the one now under consideration); Schofield v. Little, 2 Ga.App. 287, 58 S.E. 666 (7); Western & Atlantic R. Co. v. Brown, 102 Ga. 13, 29 S.E. 130; Civ. Code 1895, § 5332. The reasonable intendment to be given this verdict is that the jury found for the plaintiff $8,128.70 damages, and that they arrived at this amount by deciding that the amount of immediate damages flowing from the breach of the contract should be increased by an allowance of interest from the date of the filing of the suit till the date of the verdict, and by adding it thereto so as to make the total sum indicated. They might have allowed interest from the time of the breach, instead of the date of the filing of the suit, but in their discretion did not see fit to do so. Comparing the charge of the court on the subject with the section of the Civil Code above cited, we think that the one substantially conforms to the other. The allowance of interest as a part of the damages given in such cases is a matter addressed to the discretion of the jury; but we think that this discretion means, not a decision by mere whim or caprice, but a sound legal discretion determinable by the particular facts of the case. In cases where the wrong can be fully redressed without taking interest into...