Torras v. Raeburn

• Citation: 33 S.E. 989,108 Ga. 345
• Parties: TORRAS et al. v. RAEBURN et al.
• Decision Date: 24 July 1899
• Court: Supreme Court of Georgia

33 S.E. 989

108 Ga. 345

TORRAS et al. v. RAEBURN et al.

Supreme Court of Georgia

July 24, 1899

Syllabus by the Court.

1. Assignments of error in a bill of exceptions upon the overruling of exceptions to an auditor's report which complain of rulings made by the auditor in admitting and rejecting evidence will not be considered by this court when the evidence admitted or rejected is not set forth in the exceptions filed to the auditor's report.

2. In a suit brought by a creditor of a corporation against persons alleged to be stockholders in such corporation to recover unpaid subscriptions for stock, such persons, if shown to be subscribers for stock, will not be allowed in such a suit to call in question the corporate existence of the alleged corporation, nor to show any irregularities in its creation or organization, provided the contract sued on is within the powers apparently possessed by the alleged corporation.

3. The execution of the instrument sued on need not be proved unless the same is denied on oath.

4. When, in an equity case, it appears that there was sufficient evidence before the auditor to sustain his findings on the facts, and the judge has either disapproved all the exceptions of fact, or, sitting as judge and jury by consent has sustained the auditor on all such findings, this court will not reverse his judgment solely for the reason that there was evidence from which the auditor might have reached a different conclusion.

5. An action brought by the "managing owners" of a vessel described in a charter party cannot be defeated by showing that the vessel referred to in the charter was only owned in part by the plaintiffs.

6. In an equity case which has been referred to an auditor, where the exceptions of fact are disapproved, and the exceptions of law overruled, the proper practice is to enter a decree without the intervention of a jury.

7. The discretion of the judge in directing upon whom the costs shall fall in an equity case will not be controlled unless abused. (a) No abuse of discretion appears in the present case.

8. There was some evidence to support all of the auditor's findings of fact, and the same were approved by the trial judge, and, even if any errors of law were committed, they were not of such a nature as to require a reversal of the judgment.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by Raeburn & Verell against the Florida Phosphate Exchange & Export Company and others. Judgment for plaintiffs, and defendants Torras and others bring error. Affirmed.

Crovatt & Whitfield, for plaintiffs in error.

Goodyear & Kay, for defendants in error.

FISH J.

Raeburn & Verell sued the Florida Phosphate Exchange & Export Company, alleged to be a corporation of this state, and others, among whom were the plaintiffs in error, Torras Hitch, Dempster, and Minnehan, alleging that under a charter party dated November 2, 1893, the plaintiffs chartered to the defendant company a certain steamship, and that, when the plaintiffs had entered upon the performance of the contract and while the steamship was en route to Brunswick to fill the charter, they were notified by the defendants of their inability to carry out the contract, and of their refusal to comply with it; and the plaintiffs thereupon set to work to procure a cargo for the ship to the best possible advantage and succeeded in filling it to very good advantage with a cargo of phosphate rock and cotton at Savannah, but sustained a loss in the transaction of pounds sterling 241. 8d., which, in money of the United States, is $1,181.56 1/2 this sum being the difference between what the steamship would have earned by carrying out the contract with the defendant and the sum actually earned by carrying the substituted cargo; and the defendant company has failed and refused to pay the same. The defendant company is hopelessly insolvent, and its entire assets, so far as known to the plaintiffs, consist in certain subscriptions to stock in the company, upon which the individuals named as defendants owe, respectively, stated sums, and the plaintiffs have no means to secure payment of the sums due them by the defendant company except by the collection from these stockholders of their unpaid subscriptions. Plaintiffs, waiving discovery, prayed that an auditor be appointed to ascertain who were indebted to the defendant company, and what proportion of the indebtedness would be necessary to satisfy the plaintiffs' claim; and that they have judgment against the defendants for the amount of the claim, etc. Torras, Minnehan, Dempster, and Hitch filed separate answers, each averring that from want of sufficient information they could neither admit nor deny the averments of the petition, and alleging that they were neither subscribers for nor owned any stock in the defendant company, and distinctly denying that they were indebted to plaintiff or the defendant company. No defense was filed by the other defendants. The case was referred to an auditor, who, after hearing the same, made a report finding, among other things, that the defendant company was due plaintiffs $1,011.39, with interest from March 29, 1894, and that the individual defendants named were liable in stated sums. Exceptions of law and of fact were...