Tumlin v. Bass Furnace Co

• Citation: 20 S.E. 44,93 Ga. 594
• Parties: TUMLIN . v. BASS FURNACE CO.
• Decision Date: 19 March 1894
• Court: Supreme Court of Georgia

20 S.E. 44

93 Ga. 594

TUMLIN .

v.BASS FURNACE CO.

Supreme Court of Georgia.

March 19, 1894.

Appeal?/span>Record?/span>Bill of Exceptions?Action on Account?/span>Declaration?/span>Amendment?/span>Evidence.

1. Where a bill of exceptions assigning as error the granting of a nonsuit, and setting out the evidence introduced upon the trial (there being no brief of evidence approved and filed as a part of the record), has been signed and certified, and counsel for defendant in error afterwards presents to the judge a petition alleging that certain oral evidence, specifying it, was omitted from the bill of exceptions, which petition the judge certifies to be true, and directs the clerk to send up such oral evidence as a part of the record, but which the clerk fails to do, for the reason that there is nothing of file in his office which he can certify and send up in obedience to this order, the oral evidence set out in such petition is no part of the record, and cannot be considered by the supreme court.

2. It appearing, upon the trial of an action on an open account for goods sold and delivered, that there was a written contract between the parties as to what was to be the quantity, quality, and price of the goods, it was competent for the plaintiff to amend his declaration by seating forth the existence and contents of the written contract, not for the purpose of counting upon it as a distinct cause of action, but to disclose and allege the pertinent facts and circumstances under which the sale and delivery were made.

3. Upon the trial of such action, it was error, with or without the amendment, to reject the written contract when offered in evidence by the plaintiff for the purpose of showing that his proposed oral evidence as to the quality of the goods delivered was in conformity to the description of them contained in the contract.

(Syllabus by the Court.)

Error from city court, Floyd county; W. T. Turnbull, Judge.

Action by Albert N. Tumlin against the Bass Furnace Company on an account for charcoal sold and delivered by plaintiff to defendant. There was a judgment for defendant, and plaintiff brings error. Reversed.

H. M. Wright and Nat. Harris, for plaintiff in error.

R. T. Fouchi, for defendant in error.

LUMPKIN, J. 1. The bill of exceptions, which was duly signed and certified, assigned as error the granting of a nonsuit, and set out what purported to be the evidence adduced upon the trial. There was no brief of evidence approved and filed by the presiding judge, and thus made a part of the record. After the bill of exceptions was served upon counsel for the defendant in error, he presented to the judge a petition alleging that the plaintiff, while testifying as a witness at the trial, had made a certain admission (specifying it), which admission had been omitted from the report of the evidence as incorporated in the bill of exceptions; and counsel prayed the granting of an order by the judge directing the clerk to certify and send up, "as a part of the record, the evidence contained in this petition." Attached to the petition was a certificate by the judge in the following words: "I certify that the evidence, as set forth in the foregoing petition, was introduced as stated; and the clerk is hereby ordered and directed to certify and send up the same as a part of the record of the case." The clerk, of course, failed to comply with this order, for the simple reason that there was nothing of file in his office which he could certify and send up in obedience thereto. Consequently, the oral evidence set out in the petition is no part of the record, and cannot be considered by this court Section 5 of the supreme court practice act of 1889 provides for bringing to this court, at the instance of the defendant in error, certified copies of papers constituting a part of the record, and not specified by the plaintiff in error. When it says that if the defendant in error "shall desire more of the evidence or other parts of the record, or all of the evidence or all of the record, sent up, " it refers to evidence incorporated in a brief which has been approved by the judge and filed with the clerk, and thus made a part of the record. The effort in the present case to get before this court the alleged admission of the plaintiff in the court below was, in effect, neither more nor less than an attempt by the judge, at the instance of counsel, to amend and alter the bill of exceptions, after he had certified it and it had passed finally beyond his control. Whatever may be authorized by the words, "and it is also expressly enacted that the bill of exceptions in any case, or the certificate thereto, may beamended at any time before the final argument thereon in the supreme court, so as to make such bill of exceptions or certificate conform to the truth of the case and the forms of law, " used in the third section of the act of December 18, 1893, to regulate the practice before the supreme court, etc. (Acts 1893, p. 52), there was certainly no law in March, 1893 (the time when the petition above referred to was presented), conferring upon the judge any power to amend or in any manner change or alter a bill of exceptions after it had once passed out of his hands.

2. This was an action upon an open account for charcoal sold and delivered by the plaintiff to the defendant. It appeared from the plaintiff's testimony, while he was upon the stand as a witness, that one Stillwell had made a written contract...