16 Ga. App. 43 | Ga. Ct. App. | 1915
This suit was brought by Boyd against Floyd & Lee, alleged to be a partnership composed of J. R. Floyd and D..C. Lee. The suit is to recover commissions alleged to have been earned by Boyd as a real-estate dealer, by his services as an agent in producing a purchaser for a certain tract of land and certain timber rights. The jury returned a verdict for the plaintiff, and exceptions were taken to the judgment overruling the defendants’ motion for a new trial. The death of Boyd, the defendant in error, having been suggested of record, his temporary administratrix was in this court substituted in his stead as defendant in error.
1. The general grounds of the motion for a new trial were amended by adding two assignments of error. The first relates to an alleged error of the court in refusing a request for certain instructions to the jury, and the second assigns error upon an instruction given. While the points raised in these assignments of error are raised in the discussion of the evidence, there is no specific reference to either of them in the brief of the learned counsel for plaintiffs in error,. and, under a well-settled rule, they must be treated as having been abandoned.
2. We shall deal first with the exceptions pendente lite, which are presented in the bill of exceptions. It appears from the record that the petition in this case was filed November 22, 1913, and that the December term, 1913, was the appearance term. At that term, as appears from the bill of exceptions, the defendants, Floyd & Lee, as copartners, and J. R. Floyd in his individual capacity, before pleading to the merits or demurring, filed a special plea in bar, in which it was alleged that the pending suit involved the identical cause of action set forth in a former suit between the same parties, which was dismissed by the court, and that the judgment dismissing that action was an adjudication against the plaintiff’s right to Tecover a commission on account of the sale of the land. The plea
4. Much of the argument of counsel is directed tO' the inquiry whether the second suit was filed within six months after the dismissal of the first action. So far as the voluntary dismissal of the plaintiff’s prior suit for .commissions upon the sale of the timber is concerned, the suit was filed within six months, and would have been in time even if it had been a renewal of the same action, for the plaintiff voluntarily dismissed the prior action on June 13, 1913, and the suit now before us was filed November 22, 1913. Thus only five months and nine days had elapsed. However, we are of the opinion that the provisions of section 4381 of the Civil Code have no application whatever in this case; for the reason, already pointed out, that the parties involved in the two suits are not the same. Section 4381 relates solely to renewed cases. It refers to the same action brought over; and for an action to be the same, so that the term “renewal” will apply, it is not alone necessary that the cause of action be the same, but there must also be an exact identity of the parties. However, the provisions of section 4381 are not applicable even as to renewed cases, unless, due to the dismissal, the bar of the statute of limitations has attached or may attach; and it is to relieve this bar that the allowance of six months time in which to renew the suit is given. Hackney v. Asbury, 124 Ga. 678 (52 S. E. 886).
5. The strongest contention of the plaintiffs in error is based upon evidence that Boyd did not procure a purchaser ready, willing, and able to purchase Floyd & Lee’s property, and who actually offered to buy it on the terms stipulated by them. Floyd testified that he merely told Boyd that Floyd & Lee would pay him 5. per cent, commission upon a sale of the land at $35 per acre and the sawmill timber, 'amounting to 328 acres, at $15 per acre; that
6. The jury were authorized to find a Verdict in favor of the defendant, but they found for the plaintiff. In the state of the record a verdict would have been authorized for the commissions upon the sale of the timber, while it is not authorized upon the sale of the land. Hence the verdict is larger than is authorized by the evidence; and for that reason we direct that the verdict be reduced from $373.50 to $246.00.
Judgment affirmed, with direction.