133 Ga. 138 | Ga. | 1909
Heath, and Hogan, “partners 'in trade as the Augusta Naval Stores Company,” filed-a petition against the parties named therein, praying for an injunction, receiver, and other relief. On demurrer all the defendants were stricken except D. J. Eorlaw and the Ellis-Young Company (hereinafter called the defendants) . The case was referred to an auditor, who found, among other things, that the net profits of thé business operated by the D. J. Eorlaw Company were $12,361.92, and that the defendants were liable to the plaintiffs for one third thereof. All exceptions filed by the plaintiffs and the defendants to the auditor’s report were overruled by the trial judge, and the findings of the auditor were made the judgment of the trial court. To the decision of the court, overruling their exceptions, a writ of error was sued out by the defendants, and afterwards a writ of error was sued out by the plaintiffs. The petition filed by the plaintiffs, among other allegations, made the following: The plaintiffs had leases on turpentine farms, and borrowed money from their factors, the Ellis-Young Company, to make payments on the same, and, to secure the repayment of the loan, transferred the leases to that company. While some of these leases were outstanding, the plaintiffs secured from the Woodward Lumber Company another lease, covering the turpentine privileges on what is known as the Cashin mill tract, for which plaintiffs agreed to pay $6,000 and one half of the net profits derived therefrom. Plaintiffs drew a draft for the $6,000 on the Ellis-Young Company, who did not pay the same, but sent their agent to inspect such farm and examine the title thereto. John B. Young, of the Ellis-
The findings show that the auditor held the defendants liable, not for damages for the breach of a contract, but, as trustees ex maleficio, for profits resulting from the operation of the business. One third of the profits made by the defendants, or by the Forlaw Company, or by any other person or corporation, out of the leases could not be the measure of damages for the violation of the contract to form the proposed corporation in Which the plaintiffs were to have one third of the stock. The profits from the management of the farms might be large or small, as the management was skilful and economical, or the reverse. To measure the damages for a violation of the contract by the profits made from the operation of the farms would make the damages depend upon the skill and economy of the operator. If the defendants were liable for a breach of the contract, the measure of damages would be the difference between the market value of a one-third interest in the leases on the different tracts which were to be operated by the proposed corporation and the contract price. There was no direct evidence of the market value of all of these leases, but the whole tenor of the evidence introduced by both sides indicates that the case was tried (and the findings of the auditor show that he decided the case) on the theory as to whether or not the defendants were liable for profits as trustees ex maleficio.
It is further complained by defendants that the auditor permitted the plaintiffs to offer in evidence only a portion of a letter from Young,-one of the defendants,, to Fleming, without offering the whole of the letter. Where a letter is admissible, a portion of it can be offered in evidence without offering the whole thereof; but after one of the parties introduces such portion, the opposite party has the right to have go in evidence so much of the balance of the letter as is relevant. See, Civil Code, §§5196, 5241; Brown v. State, 119 Ga. 572 (46 S. E. 833).
Defendants also excepted to the ruling of the auditor in overruling their objections to the testimony of F. G. Lockhart, a witness for the plaintiffs, relating to a conversation between the plaintiffs; Young, Forlaw, and himself, on the ground that Young was dead. One of the objections, to this testimony was that Lockhart brought the suit for the plaintiffs upon a contingent fee of one fourth of the recovery, and sold out his interest for a worthless past-due bond of the Augusta and Elberton Eailroad Company a few days before he was offered as a witness, and this was done at the request of the plaintiffs for the purpose of qualifying himself as a witness to testify in the case. We think if. Lockhart brought the suit for the plaintiffs upon a contingent fee, and afterwards, and before he was offered as a witness, became disconnected with the case as an attorney and ceased to be interested in its results, he could not be excluded from testifying on the ground of having
Direction is given that all of the findings of the auditor be set aside, and a de novo investigation be had in such manner as may be determined by the trial judge.
Judgment reversed.