Williamson-Inman & Co., Inc. v. Thompson
| Decision Date | 15 July 1936 |
| Docket Number | 25429. |
| Citation | 187 S.E. 194,53 Ga.App. 821 |
| Parties | WILLIAMSON-INMAN & CO., Inc., v. THOMPSON. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 28, 1936.
Syllabus by the Court.
To a suit by a broker, for commissions earned in procuring sale contracts for the seller, the defendant pleaded two special defenses: (1) That the plaintiff failed to exercise good faith in not disclosing to the defendant facts which he knew or had every opportunity of knowing, as to the insolvency of the purchasers when the contracts were made; and (2) that there was a universal and general custom in the cotton trade which became a part of the brokerage contract, that commissions would not be paid to a broker for the sale of cotton until it was both shipped and paid for, and that there was no payment in this case, because the purchasers became insolvent at the time for delivery. As to the first defense the law of the case was established by the previous decision of this court, reversing a judgment in favor of the plaintiff. Williamson, Inman & Co. v. Thompson, 50 Ga.App. 564, 179 S.E. 289.
On writ of error brought by the defendant after a second verdict in favor of the plaintiff, no reversible error appears in any of the grounds of the motion for new trial, except ground 10 upon which alone the judgment is reversed.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Action by J. M. Thompson against the Williamson-Inman & Company, Inc. To review a judgment refusing defendant a new trial, defendant brings error.
Judgment reversed.
Hooper & Hooper and Arnold, Gambrell & Arnold, all of Atlanta, for plaintiff in error.
Sutherland, Tuttle & Brennan, of Atlanta, for defendant in error.
1. When this case was previously before this court, it was held that: Williamson, Inman & Co., Inc., v. Thompson, supra (headnote 1). Plaintiff in his petition, suing a seller for commissions for obtaining purchasers and written contracts for the sale of cotton, pleaded that the defendant agreed to pay him "a commission of 50 cents per bale in negotiating said contracts"; that formal contracts were executed and confirmed by the defendant, and "defendant accepted said [named corporations] as purchasers satisfactory to defendant." Denying the conclusions stated, defendant filed an answer admitting the execution of the alleged contract, but pleaded two defenses. The first was that, although plaintiff at the time of entering into the contract sued upon was acquainted with the financial condition of the purchasers, and that they were unable to purchase and pay for such amount of cotton, and he had every opportunity of knowing this, "concealed this fact from this defendant," represented the purchasers to defendant as being solvent, and "did not, as agent for this defendant in the purchase of said cotton, deal with his principal in good faith, which the law requires of such agent, and reveal to his principal the financial condition of such purchasers."
The second defense was that "it is the universal custom of the buyers and sellers of cotton in this territory * * * where this petitioner lives that commissions to brokers for sale of cotton to cotton mills and others are never due or payable until there is an actual delivery of cotton and the contract complied with according to its terms as to payment"; that plaintiff "knew of this custom * * * and that such custom entered into and became a part of the contract sued upon in this case"; and that "under this custom, this cotton never having been received by the purchaser and without fault upon the part of this defendant, who was ready at all times to carry out said contract in good faith, no commissions ever became due to petitioner under said contract."
As to the first defense, this court further held that "evidence as to the insolvency of these purchasers would not be admissible, unless the defendant could show that the plaintiff had knowledge thereof," and, without passing on the sufficiency of the evidence as to either defense, reversed the judgment in favor of plaintiff on the ground that the court had erroneously restricted defendant's right of cross-examination of plaintiff on the question of rumors heard by plaintiff "as to the bad financial condition of the purchasers prior to the time they made the contracts to purchase this cotton." In the instant trial, which resulted in a verdict in favor of plaintiff, there was no exception on account of any limitation of cross-examination of plaintiff, and he appears to have been fully cross-examined. He explained that his statement at the first trial that he had heard in the early part of 1929 (before the sale contracts were executed in July 1929) "little rumors" that the purchasers "were in bad shape," but "did not know anything about it," was due to a "misunderstanding of the question"; and he testified that in fact he did not hear such rumors until 1930, after the sale. There being no other evidence as to any "bad faith" by plaintiff, and a verdict upon this question not being demanded for defendant, under plaintiff's testimony as stated, the general grounds, as to this defense, are without merit.
2. On the second defense, as to the alleged universal custom not to pay brokerage commissions until cotton was both shipped and paid for, although several witnesses fully sustained this plea, plaintiff denied the existence of such a custom, and that there was any custom barring a broker from receiving his commission when a contract was canceled or abrogated by a principal, or when the buyer defaulted and refused delivery. It was undisputed that the instant contracts were abrogated, and the purchasers defaulted solely because of their financial inability to receive and pay for the cotton, and that the defendant seller in this suit for commission was in no way at fault. However, the existence of the custom itself being in issue under plaintiff's testimony, the general grounds, as to this defense, are without merit.
3. The court did not err in excluding, on the ground of irrelevancy, testimony by plaintiff on cross-examination that he had not sued another corporation for cotton brokerage commissions on a contract where the purchaser therein had refused delivery. Even if, as contended, such testimony might have tended more or less to show the existence of the custom pleaded, and plaintiff's knowledge thereof, proof of such a mere failure to sue would have injected into the case so many collateral questions as to the motives or reasons of the plaintiff as to have confused the jury. Moreover, the defendant was allowed to introduce testimony by the vice president of the corporation in question that plaintiff had never brought any suit for the commissions.
4. The exclusion of testimony by a witness that "in the spring of 1930" the purchasers in the brokerage contracts here involved "were bankrupt" was not prejudicial to the defendant, since, although the objections and the exclusion were based on different grounds, this evidence would have been irrelevant on the issue whether or not the purchasers were insolvent in July, 1929, at the time of the contracts, and whether the plaintiff then knew or ought to have known of the insolvency. See Smith v. Page, 72 Ga. 539, 544; Barksdale v. Security Investment Co., 120 Ga. 388(4), 395, 396, 47 S.E. 943; Gordon v. Spellman, 148 Ga. 394, 400(5), 96 S.E. 1006; Lamon v. Perry, 33 Ga.App. 248, 251(b), 125 S.E. 907.
5. A witness, who in his interrogatories had previously testified that he had worked as bookkeeper for the purchaser mills until January 15, 1929, and whose testimony showed that his knowledge of their financial condition was derived from their books and records, was asked the question: "State whether or not from your knowledge of the financial condition of said mills they were in position to receive and pay for all the cotton contracted for by them in the summer of 1929 and for delivery the early part of 1930?" The witness answered: Exception is taken to the exclusion of this testimony on the objection that the records would be the best evidence, that the witness was not shown to have any particular or expert knowledge of the ability of the mills to put their assets in liquid form to meet their bills, and that he was not shown to have been connected with either of the two mills after he left their employment in January, 1929. While the books of the mills, at the time of the trial, were in...
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