156 Ga. 480 | Ga. | 1923
Lead Opinion
The case of Marshall v. Guinn was first tried in the superior court of Fulton County, before Judge Pendleton, upon an agreed statement of facts. The judge trying the case upon the law and the facts, without the intervention of a jury, made a finding in favor of the defendant and rendered a judgment accordingly. This was, by writ of error sued out, carried to the Court of Appeals for review. The case is Marshall v. Guinn, 28 Ga. App. 78 (110 S. E. 630). The judgment of the trial court was reversed by the Court of Appeals; and upon the next trial, additional evidence being introduced, the judge, after the conclusion of the evidence and argument of counsel, directed a verdict for the plaintiff, and the defendant in the case, by bill of exceptions duly filed, .brings that judgment to this court for review. Amendment to the plea of the defendant, praying for certain equitable relief, gives jurisdiction to this court to review the judgment of the court below. It is unnecessary to make a recital of the facts in the case as set forth in the agreed statement of facts upon which the trial judge, at the first trial, heard the case; they are set forth in substance in the opinion of the Court of Appeals (28 Ga. App. 78), and the same agreed statement of facts was submitted on the last trial.
By amendment to his answer filed after the judgment of the
We are of the opinion that the court erred in refusing to allow the witness to answer the first question and in sustaining the objection to the second question and the answer thereto. In one part of his amendment to Ms answer the defendant pleaded that it was the mutual understanding of all parties that these papers were intended to effect a substitution of Aldrich & Marshall as agents in Stewart’s place, and were understood, and intended to be one entire and complete contract. This part of the amendment to the defendant’s answer had been demurred to, and the demurrer was overruled. One of the grounds of demurrer was that “the facts contained in the amendment are res adjudicata, and are determined by the opinion of the Court of Appeals in said case ” (adversely to the defendant). No exception was taken by the plaintiff to the judgment of the court overruling his demurrer, and consequently, under the amended plea as it thus stood when the demurrer .was overruled, it Avas competent for the plaintiff to show that the
Another question was as follows: “ Under the Stewart contract, when it was first made in 1913, who collected the premiums that came due on the insurance business in Savannah?” To which question the plaintiff’s counsel objected on the ground that the same was irrelevant and did not illustrate any issue in the case. Defendant’s counsel informed the court that he expected the witness to answer that Stewart collected the premiums for some three years after the contract was made, and held them as a trust fund and remitted them to the defendant; that in 1916 Stewart made an arrangement to borrow money from a Savannah bank, which was the arrangement in Existence at the time he transferred his contract to Aldrich & Marshall; and that this bank, as a condition of making the loan, required that the premiums should not be collected directly by Stewart, but that the bank itself should collect them and remit to the defendant, Guinn, his part; and that afterwards the bank had asked the defendant, Guinn, to continue the collections for them, holding Stewart’s part thereof as security for their loan to Stewart. The court then sustained -the objection of plaintiff and refused to allow the testimony which defendant sought to put in, as above stated. This evidence which it was proposed to elicit from.the witness should also have been admitted as a circumstance tending to establish the fact that the understanding in regard to these contracts was as the defendant contended. And the same ruling is applicable to the evidence offered, but which was excluded, to show how notices for premiums due were sent out and when they were sent out by the New England Mutual company with reference to the Savannah business.
Dissenting Opinion
dissenting. Being of the opinion that nothing in the evidence submitted by the defendant took the case without the ruling made by the Court of Appeals that the two contracts in question were separate and distinct contracts, and that the evidence rejected was not competent nor sufficient by itself or in connection with that admitted to show that a different construction of these papers was required, I am compelled to dissent from the ruling of the majority as made in the second and third headnotes. I am authorized to say that B.ussell, C. J., concurs in this dissent.