Brandt v. Computing Cloth Measuring Machine Co.

27 Ga. App. 704 | Ga. Ct. App. | 1921

Hum, J.

(After stating the foregoing facts.) Originally filed as an equitable petition praying fox the specific performance of- a contract, all equitable features of the case were eliminated by amendments, and, when -the case reached the Supreme Court, on an investigation thereof the case was transferred to this court for adjudication, on the ground that, properly construed, the petition as amended made a plain action at law based on contract. Seduced to its last analysis the petition as amended asked only for a money judgment of $2,000, which it was alleged was due the plaintiff under the contract; for, of course, it could not be contended that the-money was due unless the. contract was valid and binding upon Brandt. This makes it necessary for this court to decide only the question made by this issue, and the evidence on this issue, although quite voluminous, may be substantially stated as follows: There was no dispute that the contract as set out in the petition was entered into by the parties. Under the terms of this contract the Luster patents were transferred and assigned to Brandt for a consideration of $4,000. Brandt agreed that he was to perfect the measuring machine covered by the Luster patent and was to organize a company for the purpose, and when this company was organized he was to pay the $2,000 to the plaintiff, and when the machines were perfected he was to pay the additional $2,000, and thereafter royalties on the machines as manufactured. The evidence clearly shows that, in accordance with the terms of this contract, Brandt did proceed to organize a company and did endeavor to perfect and manufacture the measuring machines covered by the Luster patents, which had been transferred to him by the plaintiff. He set up, however, as a defense to the payment of the $2,000, that after an earnest and faithful endeavor he' found that the Luster patents, or rather the machines according to the Luster patents, were so defective that they were worthless; that thereupon he abandoned the effort to perfect or manufacture this machine and proceeded to organize a company in Delaware for the manufacture of a different machine, wholly independent of the Luster patents. The evidence for the plaintiff tends to establish the fact that Brandt’s contention that the Luster patents were worthless and he had abandoned them was untrue, and as a matter of fact he had organized this Delaware Company for the purpose of manufacturing machines under the Luster patents and according to the terms of his contract made with the company. This evidence was by expert witnesses, who called the attention of the court to the similarity in the machines which Brandt proposed to manufacture in the Delaware company to those covered by the Luster patents. Brandt by his testimony alone denied these facts.

One significant fact insisted upon by the plaintiff is that Brandt never informed the plaintiff of the alleged worthless character of the Luster patents, that no contention of this sort was set up until the trial; and the plaintiff further calls attention to what are claimed to be admissions on the part of Brandt, made in a ease filed by Paul Buckley against him in the superior court of Clarke county. In that case it was sought to recover the value of stock alleged to have been issued by the Delaware company by Brandt, and it was alleged by Brandt that this Delaware company was organized for the purpose of manufacturing and selling the measuring machines covered by the Luster patents, which had been assigned to him by the Measuring Machine Company, and the stock in question had been issued to him by the Delaware company for the assignment by him of the right to manufacture and sell the machines under the Luster patents. While admissions or allegations of facts in pleadings are conclusive only on the parties in the case or their privies as admissions in judicio, yet these allegations made by Brandt in the Buckley suit were admitted by the trial court as extrajudicial admissions, and certainty, if relevant to the issue, gave strong support to the contentions of the plaintiff that Brandt’s denial that he did organize the Delaware company for the purpose of carrying out the agreement made with the plaintiff was not true; and these admissions, taken in connection with the expert evidence in behalf of the plaintiff’s claim, were sufficient to establish the contention of the plaintiff that it was entitled to the pajment of the $2,000 which Brandt had expressly agreed to pay upon the organization of the company for the purpose of manufacturing and selling the machines made- under the Luster patents. Without further elaboration of the evidence as to this issue, this court is of the opinion, from a careful consideration thereof, that the evidence is clearly sufficient to support a verdict for $2,000 against the defendant. The fact that the jury found a verdict for $1,500 with interest is not a matter of which the defendant Brandt can complain, in view of the fact that under the evidence a verdict for $2,000 would have been amply supported by the evidence.

The verdict, in addition to finding for the plaintiff the sum of $1,500 as principal, with interest, further found “that a decree be entered to the effect that the contract sued upon is binding by its terms and provisions upon the said Brandt.” This part of the verdict may be treated as a matter of inducement or surplusage, for there is nothing in the verdict, construed as a whole, that requires the defendant to do anything except to pay the money portion of the verdict. The verdict simply finds the validity of the contract between Brandt and the Computing Cloth Measuring Machine Company, as the reason why the payment should be made; and this is the view the Supreme Court must have taken in its judgment transferring the case to this court for adjudication. Treating the verdict, therefore, as a money verdict, and the other portion thereof, referring to the contract, as surplusage, we have reached the conclusion that the general grounds of the motion are without merit.

The specific assignments of error in the amended motion for a new trial, relating to the rulings on testimony and refusal to charge, do not present any reason why the money verdict, which is amply supported by the evidence, sliopld be set aside and a new trial granted.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.