*1 " agent (f) agency account, in the author- From funds is premiums taxes, and pay the ad valorem insurance other ized to they due. charges fixed as become similar keep account all transactions “(g) To accurate books of received to render respect properties to said funds in semi-annually principals. detailed statements “ agent information as (h) to time such supply To from time having intangible income and may possess purpose of for the prepared principals. returns tax
“(i) tax for the real estate prepare ad valorem returns To managed by agent.” hereunder writing the de- constituted admission in
The contract inspect building, including the right had fendants corresponding liability for Crossley failure store, ordinary making nec- discovering exercise care defects essary repairs. necessary parties in the case have been
It is the defendants originally concerned in transaction between of the defendants’ Company avail themselves and the Trust right incident to had retained the written admission Building. Nor possession entire qualified Eulalia terms the de- express state essential that contract right. language retained fendants such both that part clear assertion on inspect space occupied exercising right to the store and were Crossley. ample for the to have my opinion In evidence there plaintiff’s returned them the favor. predicated the verdict 35325. IRWIN et al. v. YOUNG et al. Rehearing denied 17, 31,
Decided March March *5 Lindsay, Hal John Crenshaw, W. W. Grant, G.
in error.
William H. Schroder, Sams, & Locker- Troutman, Schroder man, contra. general ground J. 1. The the verdict was
Quillian, against superior weight of the evidence is addressed to discretion trial court is not for review here. evidence to verdict was without ground that the general at the trial. perusal of evidence requires a careful support it authorizing record competent evidence in the There consisting into a entered parties to find that *6 By facts. foregoing of the in the statement referred to matters by plaintiffs employed were the de- the contract, this terms of of in the amount income a reduction taxes to obtain fendants periods named Government over two of by them the exacted of 1939 to years 1945 inclusive. 1915 to and time, the plaintiffs’ services, the defendants of the In consideration per amount of diem and an agreed a certain pay them percent any and reduction equal to one-half of “amount seven penalty by report the proposed and as disclosed” of the taxes Agency covering years the aforementioned the Internal Revenue upon final defendants’ tax case. Evidence the settlement the plaintiffs upon discharge entered the the was submitted that required by contract, them the and continued to the duties agreeable by terms the render services to its until defendants wrong prevented performance the of the certain conduct future The was contract. evidence referred to that the defendants with- concerning engaged by certain information transactions held State California proper defendants in the essential to the the the compilation computation defendants’ income over by period years contract; that, covered the without infor- up to, could not make mation statement showing entitled that defendants were to a reduction in their years taxes referred to in contract. income for the The evi- that, the filing dence introduced showed thereafter and before present suit, did settle 'their tax case defendants with the amount, named resulting Government for a in a reduction of the years penalties for the named in taxes contract. in sharp conflict on
The evidence each material was while not issues of the at all conclusive nor case, was rendered we are demanded, the verdict constrained hold that by verdict returned not without evidence to it. support that
The defendants insist the evidence did not show that the between defendants and the settlement result- Government, ing in a reduction of amount of the Government’s claim of by accomplished tax the defendants, by
income
due
efforts
plaintiffs,
they
for this reason
are not entitled to
recover;
provide-that
did not
paid
by
to be
the amount
the work on the basis of
which
reducing
against
succeeded in
the Government’s claim
the defend-
ants,
provided
compensation
computed
but
their
was to be
upon
ultimately
the amount
which the claim was
reduced.
position
supporting
defendants’
not well taken. For
The
au-
(8
81).
thority
Bryan,
Candler v.
We have
examined authorities cited
for
counsel
(plaintiffs
here), among
the defendants
in error
which are sev-
Georgia
authority
eral
cases. None
them is
for any
of
different
expressed by
opinion.
view from that
this
7,
2.
4, 5, 6,
10, 12,
14,
Grounds
21
8,
13,
16,
18, 19, 20,
17,
22
of the motion for new trial each
that
recites
certain evi
objections
dence was admitted over stated
of counsel for the
However,
grounds
movant.
none
these
asserts that
the ad
mission of the evidence was
Under
authority
erroneous.
holdings
our appellate courts,
grounds
numerous
cannot
Georgia
Ry.
be considered. Binion v.
Co.,
Southern &c.
118 Ga.
(45
(1)
Kelley
282
S.
276);
Kelley,
(1) (83
E.
v.
781 (3) (112 App. 915); Campbell v. E. Cathey 28 Ga. 666 S. State, 545). (92 (4) E. App. v. 88 S. Walker, 20 Ga. assign error on exceptions the admission
The bill of does grounds, but referred to in the above-mentioned the evidence new deficiency for trial. supply thus motion cannot 200, supra. Sims v. 147 Ga. Quillian, trial amended motion new
3. Grounds movant, repeat by made relate mistrial was that motion for counsel, specifically also detail colloquies between the court and upon predicated, and state grounds which the motions complaint but contain no overruled, the motion was by ruling Nothing presented these was error. court’s or for review here. of the trial court grounds for consideration rulings upon pleadings complain 23 and Grounds exceptions by motion only by be made that could bill 1059, Henley Brockman, supra. v. 124 Ga. new trial. special mere complained ground of in 25 was a charge 5. The alleged plaintiffs’ petition. by what in the recital the court of by paragraph referred charge The criticism by demurrer, by and the issue raised had been stricken court judicio. The previously eliminated a statement had been exhibit or paragraph contained the same substance as or on demurrer petition, was not stricken attached which petition. from the otherwise deleted recovery was asked plaintiffs’ counsel did state no the contract rendered under the terms
for services petition contained charge. An amendment to also to in the effect. amendment the same express averment to as to the charging them judge to the read the trial *8 presented by pleadings. issues the by petition the have shown to to was
The contract became an that each in- merged contract, with another so been brought for the breach tegral The suit was part of the other. required good pleading rules of The of the latter contract. the contract petition the entire they set out in plaintiffs the that from the by them arose damages upon, though all claimed sued because contract. This true particular part the a breach a con- determine whether for courts to it would be difficult the portion of it was set out. a when had been breached tract ground charge to fails show either error in the or to hurt by the defendants’ reason it. case complains charged 6. Ground 26 that the court the that petition certain made in the had averments been stricken. The paragraph court read in the and an stricken amendment substi- tuting paragraph charge another in stead. The clear, its subject understandable, any and not to criticism made of it. complains charged 7. Ground 27 that the court jury: “Now, gentlemen, plaintiffs they in this case contend that employed were under a contract out things. set to do certain They ready, contend they willing, carry that were to able part out prevented their of the contract and that from carrying by part out on the contract acts defendants impossible perform such as to render it them to for and amounted to a charge you, breach of the contract. I gen- tlemen, party a contract employs where another to personal services, render the implied duty party it is employing the render cooperate so other to such services with party, you and that it will be consider in this case plaintiffs or prevented whether not the were or were not from performing by the contract cooperation, lack of any, if part In defendants. order for the failure of the de- cooperate, if fendants to there such, to be of a sufficient plaintiffs quit amount and go no further under the contract, would necessary it for such failure to cooperate, if such, impossible there to render for the pro- complaint quoted ceed.” charge as to is that it was not authorized the evidence.
A careful review the evidence the record discloses that proof there was sufficient wrongfully pre- vented the from performing the contract to authorize charge excepted to. The evidence referred to consisted in part testimony plaintiffs, Sykes of one of the H. Young: “In 1948, supplemental report when this was issued Department Treasury reducing taxes; along about that time security there was discussion about transactions California. regard good There were discussions in deal bond trans- believe, political I actions, primarily, with local subdivisions. Irwin had Mr. stated that of transactions. Had Jots *9 bought political that were subdi- lots of bonds issued these believe, correctly, I if I remember were them, Some visions. perhaps cities; maybe and were coun- districts some local school good were a deal of urged But he there those ties. to determine transactions, and we needed that information by him as and costs those securities owned cents dollars year building his net end up worth as the end of each determining during it these year how much each increased years. many great- letters—but a had—I remember how
“We don’t Mr. letters, urging get Irwin to telephone than deal more calls California because it was back information for us from this years, way perhaps back or and 1939, more, some of it and great he a trying the fact that worth were establish we to years con- money than the Government in the earlier deal more felt, proper an we to the essential, and it was absolute tended, so case. handling his tax just did you that, you 'Did him or feel
“You asked me: tell many A that, lot No, no; we him occasions. that?’ told by corresponding. we did telephone than more times over send out Cali- glad be someone to we told him we would to And and get of course we would up him, this information for fornia to per men, diem for and would charge him the our staff have to expenses. I charge traveling think on one occasion him have to get up And then go himself. later said he would out it he in California. He employed us had someone said he told he it time on going to work full employed a CPA that was .lie information as to got upit for us. He volunteered until he per $200.00 paying he him. Said it was the amount get him up urged for us. We month, get this information to to charge agent Revenue at time Internal up because filed and protest becoming very insistent that many other conclusion, because so suits pushed case be to of the Winecoff pending, perhaps things as result that were fire. Hotel filed supplemental letter wasn’t because protest
“The go get information, out permitted weren’t we prepare information get us Mr. never did sufficient Irwin That cer- intelligent protest.' it; file protest. couldn’t We tainly was told Mr. and Mrs. Irwin. you me: say
“You asked 'Did or not or ever to Mr. Mrs. Irwin May you before 10, just going 1948 that get out *10 case they just give you any help because wouldn’t or anything?’ We never did going get tell them that we were to out of case. the I would qualify like to I last statement We that made. you never did unless May being refer to this letter of 10th as such; brought That 1948. on the fact that we couldn’t protest file the get because Mr. Irwin the informa- wouldn’t us tion; or didn’t.” charge
Another criticism the is that was adapted to the pleadings and particular issues in the case para- because graph raising the issue which it to been stricken on demurrer. It is special true that the did court sustain a de- murrer paragraph to the petition question, but in the sustaining provided order the demurrer would objection be allowed to amend meet to raised demurrer, that, if failed amend to so it would be paragraph, stricken. The offered, thereafter and the court trial allowed, a material to paragraph; amendment there nowas objection to the amendment, allowance of the and the defendants did original not renew their demurrer. So paragraph after amendment sufficiently was "made whole,” presented the charge issue authorize complain. to which 8. excepts Ground 28 to a charge similar on the identical grounds ground 27, as in and is without merit.
9. The assignment first numbered of error is that the court erred in overruling the general defendants’ demurrers to an adding petition, amendment two of count originally which count; consisted of assigns one and also error on the over- ruling special of several demurrers directed various paragraphs amendment.
Another amendment
allowed,
was thereafter
adding material
averments filed,
the amendment first
to which last amend-
objection
ment no
and no
interposed
renewal of the demurrer
the first
presented.
In
amendment
these circumstances,
defendants must
held
have
waived their
at-
demurrers
tacking the first-mentioned amendment. Hendrix v. Pirkle, 208
(69
(69
Ga. 751
E.
267);
(1)
S.
2d
Howard v. Lee,
785
263).
E.
In
Howard
held:
S.
2d
case it
“‘A
demurrer to
original petition
more,
not,
does
without
cover the petition
respects,
after
been amended in
it has
material
but in such case
renewed,
the demurrer should be
if
relied
Living
it is still
on.’
(19
Barnett,
ston v.
385);
exceptions ruling striking error on the portions of paragraphs and 13 of the answer. defendants’ portion paragraph stricken demurrer reads: do not “Defendants deny are capacity other, enrolled one or the but *11 privileges aver of are accountants not extensive as under regulations the laws and pertaining attorneys as those to may latter appear at law. The in the District Courts and Courts Appeals of may by of the States United which not be done as accountants such.” portion paragraph
The of 13 of the answer stricken de- on murrer against reads: show “Defendants that said as claim of $3,610.00 they had made previously deposit $7,500.00 a of which plaintiffs appropriated rendering any without service in they aver, plaintiffs return therefor and therefore, that are in- debted $3,890.00, to for the sum of defendants the unconsumed portion deposit $7,500.00 alleged of said of if the even services had been deny, being rendered—which defendants as attempt vary to add the the copy to terms of written of contract, which complaint, specifically attached to the which provides is deposit $7,500.00 the was a retainer and anot and that the per charges were diem in addition thereto.” language paragraph
The contained 2 of the answer ground demurred on that it the was irrelevant to the of issues position the The the case. of demurrant was well taken. The petition plaintiffs per- had set forth that the were licensed and by contemplated law service mitted render the their by employment, and further contract of showed members lawyers the firm were made Consequently, accountants. it privileges ex- of accountants were as difference whether the no attorneys at regulations under referred to as those of law. tensive portion paragraph of the answer was demurred to vary ground it by undertook on upon. definitely the written contract sued The contract terms of fee $7,500, for a retainer provided paragraph stricken portion in addition thereto. The paid paid to cover up $7,500 that the retainer of undertook to set subject presented by criticism per diem, and was by assign- plaintiffs’ demurrer. No error is shown second ment of error. considering assignments error the bill of ex-
11. In ceptions inclusive, 3 to be remembered that the should trial 9, A motion new trial filed completed for on October by date, was filed and the bill on same denial was certified and filed on exceptions to the of the same complain assignments error 14, 1954. June ruling admissibility evidence judge’s on and of of the trial during progress for made mistrial his denial the motions denied and an trial. When motion for new trial is every question properly raised appeal court, taken to this rulings for such on mistrial trial, motion for new as motions rulings pertaining to the conduct of the various other matters by assignments presented here of error for consideration trial, judgment exceptions denying bill of on the the motion in the properly questions assign- raised new trial. Such are They exceptions. be raised in a bill of can ments of error by a motion new trial. *12 Assignments 26, 27, 28, complain and 29 24, 25,
12. of error erroneously charged give and failed to court that the jury. questions These were not requested instructions to the exceptions rulings such by assigning in the bill properly raised way question as to the correctness error. The as trial. rulings motion new could be raised was these merely Assignment 31 consists recital of 13. of error erred, presents nothing alleging that the court without facts consideration. disposed of in Assignments 30 and 32 deal with matters opinion passing upon grounds this of the motion for new trial. judgment of the trial court is affirmed.
Gardner, P. J., Townsend, Carlisle, and Nichols, JJ., concur. Felton, C. dissents. J., dissenting. C. J., I judgment dissent from the
Felton, be- cause, case, under facts of this defendants were entitled plaintiffs’ use of the worksheets, which contained informa- tion the defendants needed to contest tax assessments if plaintiffs damages insisted full for the breach of the entire undisputed contract. The plaintiffs evidence is refused permit the defendants have the use of these work sheets, necessary it was lawyers for the defendants’ to do the work over. comport It does equity good not with conscience, in my opinion, plaintiffs for the to withhold the benefit of the work- sheets from the defendants and still be entitled to recover from damage them the entire for breach of the contract, which was agreed paid, amount to be very which covered the benefits that were withheld. I think is true if the this even guilty lack co-operation of such justify would as going through with contract. demanding justice are be done they paid and that full, and this when they part cannot do have withheld suing. consideration for which are 35385. HEALAN et al. v. POWELL et al.