182 Ga. 124 | Ga. | 1936
Lead Opinion
On April 24, 1930, a contract of employment was entered into between the Southern Service Corporation and George G. Barber, the pertinent provisions of which were: “1. The corporation agrees to employ said George G. Barber for a period of three years, beginning April 24, 1930, and ending April 23, 1933, as general manager of the corporation and of such other corporations as now or hereafter may become subject to its management. 2. The said George G. Barber agrees to accept such employment for the period specified, and during such period to devote his entire time and attention and his best efforts to the business of the corporation, and not to engage directly or indirectly in any other business.” All the capital stock of the Southern Service Corporation was owned by the Columbia Baking Company, which was also the owner of all the capital stock of eight other corporations engaged in the business of manufacturing and selling bread and cakes. The Southern Service Corporation was the management corporation which directed and supervised the operations of the eight subsidiary production organizations. Barber was president of the Columbia Baking Company, Southern Service Corpora
As succinctly stated in the brief of counsel for the plaintiff in error: “The auditor found: (1) That there was no merit in the claim for damages of the defendants in error against the plaintiff in error. (2) That Barber had complied with his obligation to devote his entire time and attention to the business of the Southern Service Corporation and to engage in no other business. (3) That the disehargé of Barber was justified.” It is unnecessary that the numerous exceptions to the auditor’s report be detailed; for, as said in counsel’s brief, “The sole issue is as to the wrongful or rightful discharge of Barber. If the discharge was wrongful, the Southern Service Corporation is liable on the contract, and the Columbia Baking Company is liable on its guar
Since Barber filed no exceptions to any of the auditor’s findings of fact, he admitted the correctness of finding No. 24, as follows: “With the exception of Mr. Barber and Mr. Tipton, all of the directors elected at the annual meeting of the stockholders of Columbia Baking Company, in February, 1930, were engaged in lines of business other than baking. The personnel of this board of directors was satisfactory to Mr. Barber, and followed his leadership, without a dissenting vote.” He also, by failing to except, admitted the correctness of finding No. 56, as follows: “In October-, 1931, the Shaefer Baking Company, one of the subsidiaries of Columbia Baking Company [under Barber’s supervision], and operating a baking plant in Savannah, Georgia, owned a certain garage property in the City of Savannah, used for the storage of automobiles, and carried on the books of the company at $22,000. At some time after October 10, 1931, Mr. Frank Morgan, manager of the Shaefer Baiting Company, gave an option on this property to one Greenberg for $7500, the option expiring on December 1, 1931. The terms of this option to purchase said property were $2500 cash, and the balance of $5,000 to be payable on terms secured by deed to the property. This option was entered into on the authority and under the direction of Mr. Barber. Evidently the option was exercised, but the transaction was never consummated, and later resulted in litigation between Greenberg and Shaefer Baking Company, in which the former recovered judgment against the latter in
“When error is assigned upon the refusal of a judge to approve an exception df fact to an auditor’s report in an equity case, the burden is upon the plaintiff in error to show, to the satisfaction of the Supreme Court, that the finding of the auditor is unsupported by evidence, the presumption being that the finding is correct; and where it does not distinctly appear that the finding is unsupported, the judgment of the trial judge refusing to approve the exception
Judgment affirmed.
Rehearing
ON MOTION TOR REHEARING.
A careful examination of the motion for rehearing has been made. If it were not for two issues, there might be some merit in the legal contentions made by the plaintiff in error. We refer to the findings of the auditor in regard to maintaining offices in New York City and in spending such a large'portion of his time in these offices, and to the loss sustained in the Savannah transaction by reason of Barber’s action. With regard to these two matters it is apparent that any claim that the directors or corporate authorities were responsible for the action taken, and for the consequences, can not be sustained as a matter of law, so as to relieve Barber from all possible inference of mismanagement in regard to them. In the state of the record this court can not say that the conclusion of the auditor to the effect that Barber’s discharge was authorized should have been set aside by the judge on the exceptions taken. We are therefore of the opinion that the decision by this court affirming the judgment of the trial court was correct, and that the motion for a rehearing should be denied. “Where some of the findings of fact by an auditor are sufficient to support a judgment or decree in favor of one of the parties, and are not themselves subject to exceptions taken, a judgment founded thereon in favor of such party should not be disturbed by this court, notwithstanding other findings of fact and of law may have been subject to exception.” Robinson v. Reese, 175 Ga. 575 (6) (165 S. E. 744). Rehearing denied.