11 S.E.2d 713 | Ga. Ct. App. | 1940
1. The evidence failed to establish the fraud and deceit alleged by the defendant but in this respect amounted only to a promise to pay money in the future.
2. In the absence of fraud, accident, or mistake, the writing signed by the parties to the suit and treated by them as an account stated will be presumed to contain or represent the entire agreement between them with reference to the indebtedness then existing between them by reason of the contract of employment entered into.
3. The appellate division of the trial court did not err in granting a new trial.
1. The stated account sued on was not denied by the defendant. He admitted that he signed it, but contended that he did so because of the fraudulent representations of the plaintiff. The only evidence in this respect was that of the defendant, to the effect that the agent of the plaintiff told him, when he signed the stated account on May 24, 1934, that he would be paid his salary to May 31, 1934, and the further sum of $36 representing the cost of a trip to Montgomery, Alabama, and that he did not keep his promise. This would not warrant the inference that the promise was made with the intention not to perform it. It was merely a promise to pay money in the future, and, if breached, did not constitute actionable *549
fraud. Therefore it was error for the court to charge the jury that if the agent of the Waterproofing Company made the promise to Mr. Bullard to pay the salary and expenses with the intention at the time not to perform the promise, if Mr. Bullard relied on the promise to his injury, he would not be liable on the written agreement sued on. See Rogers v. Sinclair Refining Co.,
2. It appears from the evidence that the indebtedness represented by the stated account and that claimed by the defendant grew out of the contract of employment by the plaintiff of the defendant as manager of its business in Atlanta and the surrounding territory. "An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment."Ward v. Stewart,
3. The appellate division of the trial court did not err in granting a new trial.
Judgment affirmed. Stephens, P. J., and Felton, J.,concur. *550