Dublin & Southwestern Railway Co. v. Akerman & Akerman

2 Ga. App. 746 | Ga. Ct. App. | 1907

Powell, J.

(After stating the facts.)

1. The statement in the first headnote is too plain to justify elaboration. Buffington v. State, 124 Ga. 24 (52 S. E. 19); Smith v. Columbia Jewelry Co., 114 Ga. 698 (40 S. E. 735); Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 776 (50 S. E. 978).

2. The statement in the second headnote seems likewise obvious. Very frequently the most valuable service an attorney can perform for his client is to keep him out of a suit.

3. The third headnote is copied bodily from 10 Cyc. 928 (8b). We are inclined to think that the general counsel or head of the le.gal department, in a corporation such as this, would have the implied power to employ such special or local attorneys as might be necessary. Certainly the employment of an attorney by the joint .authority of the general counsel and the president, who also exercises the duties of superintendent, is to be regarded as the act •of the corporation. It is said, in the argument, that there is no •evidence of Mr. Rentz’s official capacity; that Judge Roberts’s testimony to that effect was prefaced by the words “I think.” 'There is no rational distinction between the expressions “I think” •and “according to my recollection,” as applied to the testimony of a witness as to the existence of a fact which came within his personal knowledge. Mimbs v. State, ante, 387 (58 S. E. 499); Voisin v. Commercial Ins. Co., 60 App. Div. (N. Y.) 499 (70 N. Y. Supp. 147, 154); Humphries v. Parker, 52 Me. 502, 504; Galveston Ry. Co. v. Parrish, 43 S. W. 536. See the second definition of the verb “think,” in the Century Dictionary.

4. The testimony is clear and unequivocal that this debt is due and owing by the defendant to the plaintiff. It is true that there are some exceptions taken in the record, 'based upon objections to testimony; but should we concede all these objections to be well founded (though indeed they are not), still they relate to immaterial matters, -not in any wise changing the only material fact, which is overwhelmingly established and not denied, that this debt is due the plaintiffs; and therefore these exceptions are utterly immaterial. By not a word of testimony does the defendant dispute the debt; the only reason, so far as the record shows, why it has not been paid is indicated by the statement made by the president at the directors’ meeting, that he was “holding them off to see if he could not get them down some.” After a careful consideration of the record, we have become satisfied that the bringing of the case to this court is but a part of the defendant’s plan to “hold off” the plaintiffs; that it was for delay only. Protection to the State as well as the defendants in error demands the awarding of damages in-such cases.

Judgment affirmed, and ten fer cent, damages awarded.