115 Ga. App. 756 | Ga. Ct. App. | 1967
The Dobbs & Company contract obligated it to collect rents, make disbursements relative to the building, including contracts for cleaning services, deduct its own commissions and expenses for the management of the building and remit the balance to the bank accompanied by proper receipted vouchers covering all expenses and disbursements. Over a period of months it failed to furnish vouchers but did attach a statement listing receipts and charges, together with bills marked “processed” but not otherwise shown to have been paid. Mr. White, comptroller and treasurer of the bank, and Mr. Kirk, its vice president, testified that they assumed this to mean the bills had in fact been paid by Dobbs. Most months during which the contract was in force collected rents were insufficient to cover expenses, and the bank would remit the balance to Dobbs.
On June 11, 1964, Building Maintenance, Inc. wrote Dobbs complaining of failure to pay its invoices going back to February, 1964, for cleaning done in the bank building, as to which the writer testified: “I believe I [sent a copy to Kirk] because when we were having these discussions I sent some blind copies to Mr. Kirk.” Kirk denied positively having knowledge of the letter or these facts in June, 1964, but White, the treasurer testified that it “could be” the letter he saw in the summer or fall of 1964. Witnesses are not required to speak with absolute posi
As to proof of loss, a fidelity insurance policy numbered 427960 covering named employees but restricted to natural persons was issued January 18, 1963. The name schedule bond listing Dobbs & Company for $10,000 coverage was issued in February, retroactive to January 18, and bore no number, although the insurance company carried it as 428060. A rider to policy 427960 was issued February 20, 1965, covering Dobbs & Company in the sum of $50,000, and this number was specified in the correspondence and proof of loss form filed by the bank. In its petition it claimed coverage under both policies, but the trial court properly directed a verdict against the plaintiff as to the $50,000 coverage, since a finding was demanded that the bank received a letter dated January 29, 1965, calling attention to the fact that invoices totaling $4,926.91 had not been paid, going back to September, 1964, and as the result of investigation had established that Dobbs had taken credit for over $18,000 in charges which it had not paid. Against this background the court instructed the jury that the plaintiff would not be entitled to recover any loss under the name schedule bond unless within four months after the discovery of such loss it filed with the defendant a detailed proof of loss as required by that bond. A proof of loss as required by the name schedule bond was in fact filed on April 6, 1965, and the issue was whether this was done within four months after the discovery of the loss, upon which issue the jury was properly instructed. The instruction: “Under the terms of the name schedule bond, the coverage of that bond came to an end immediately upon the discovery of Mr. Kirk or Mr. White, who were officers of the plaintiff, that Dobbs & Co. had committed a dishonest or fraudulent act” is perhaps ambiguous and is attacked by the appellant as an expression of opinion by the court that officers of the corporation had discovered a dishonest act and thereby ended the coverage prior to the loss on which this action is brought. But such a conclusion could hardly be reached by the jury. It is obvious
The instruction that the duty is on one injured by a breach of contract to use ordinary care to lessen his damages was abstractly correct. It was excepted to because there was “no evidence that after First Federal had suffered a loss it could have taken any action which could have lessened the damages which might have resulted to it,” as to which the court replied that it was a standard Code section which he had merely charged in continuity. We are inclined to agree with both parties; nevertheless, not every Code section unsupported by evidence is reversible error when injected into a trial. The error, if any, was harmless. Dill v. State, 222 Ga. 793 (1) (152 SE2d 741). The remaining excerpts from the charge excepted to are without error.
Judgment affirmed.