29 S.E.2d 300 | Ga. Ct. App. | 1944
Lead Opinion
1. We find no errors in the assignment on the exceptions pendente lite for the reasons set forth in the opinion.
2. The special grounds of the motion for new trial are without merit.
3. The evidence sustained the verdict, and the court did not err in overruling the motion for new trial.
"6. The purchaser shall have no power or authority to make any statement or representation, or to incur any debt, obligation, or liability of any kind whatsoever, in the name of, or for, or on account of the company.
"7. The company shall have no interest in the accounts due for goods sold by the purchaser; and no printed advertising or other matter of the company, sent to, or distributed by the purchaser, shall be construed to direct or control the sale or other disposition of said goods, or to change or modify the terms of this agreement.
"8. It is also mutually agreed that this is the complete, entire, and only agreement between the parties, and that it shall not be varied, changed, or modified in any respect except in writing executed by the parties hereto; and that either of the parties hereto may terminate this agreement at any time, if desired, by giving the other party notice thereof in writing by mail.
"9. The purchaser promises to pay the company, at Winona, Minn., from time to time, after 30 days from the date of acceptance of this agreement, in amounts satisfactory to the company, the indebtedness *723 he now owes the company, and agrees, at the expiration or termination of this agreement, to pay any balance thereof then remaining unpaid, payment of which indebtedness is hereby so extended.
"10. The purchaser and the company, for the purpose of settling and determining the amount of the indebtedness now owing from the purchaser to the company, hereby mutually agree that the said indebtedness is the sum of $493.15, which sum the purchaser agrees to pay, and the company agrees to receive, and payment of which is extended as above provided."
The portion of the above-quoted contract was signed by the company and Ellington. Below their signatures, and as a part of the instrument declared upon, the following appears, signed by Batten: "In consideration of the execution of the foregoing agreement by the J. R. Watkins Company, which we have read, or heard read, and hereby agree and assent to, and its promise to sell, and the sale and delivery of it, to the purchaser, as vendee, of goods and other articles, and the extension of the time of payment of the indebtedness owing by him to said company, as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, notice of default or non-payment and waive action required, upon notice, by any statute, against the purchaser; and we jointly, severally and unconditionally promise, agree and guarantee to pay said indebtedness, the amount of which is now written in said agreement or if not written therein, we hereby authorize the amount of said indebtedness to be written therein; and we jointly, severally, and unconditionally promise to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time and place, and in the manner in said agreement provided. And we further severally agree that, in case of the death of one or more of us, the undersigned sureties, before the expiration or termination of this agreement, the liability of the surviving surety, or sureties, shall continue until notice of the death of the deceased surety, or sureties, is given to the company, at Winona, Minnesota, by registered mail."
The company alleged that by virtue of the contract it shipped merchandise to Ellington to the amount of $652.78, which he received, and that he paid $419.49, which left a balance of $233.29 unpaid. Ellington filed an answer, which formed an issue as to *724 certain paragraphs of the petition. To the second paragraph, which stated that the defendants were indebted to the company in the sum of $493.15, alleged to be past-due indebtedness at the time the agreement declared upon was signed, the answer alleged that Ellington could neither admit nor deny this allegation, and demanded proof of the same. He denied paragraph 3, which alleged the amount of merchandise shipped to him, and the amount paid thereon, and that he owed the alleged balance of $233.29. He denied any indebtedness, and further answered (a) that after the execution of the contract the company directed credit sales; (b) that he made such credit sales under the company's direction and knowledge; (c) that the company did not object to the person's credit; (d) that on the date the contract expired, April 1, 1939, the credit sales made for the account of the company were sufficient to pay the full balance sued for (meaning $233.29) except $73.66. In an amendment to his answer, he alleged: (1) that at the time he signed the contract sued on he owed the company no amount that was not already secured, and no amount of existing indebtedness was to be, or was, incorporated in the same, and that E. L. Batten was so advised at the time he (Batten) signed as "guarantor;" (2) that during the life of the contract sued on he purchased only $580.10 worth of merchandise, and overpaid the company $118.04; that any and all liability under the contract was extinguished; that while his checks and post-office orders with which he made payments were lost, misplaced, or destroyed, and the nature of such payments could not be identified definitely, he did have and knew the dates and amounts, and attached an exhibit showing $698.14 payment; (3) that after this defendant had advised the company of his procurement of Batten to sign the contract with him, and after Batten had been accepted and approved by the company, the company caused a form of contract to be prepared and transmitted to Ellington to be by him presented to Batten for his signature, and thereafter for the company to transmit the contract to its home office (in Winona, Minn.), all of which was done at the instance and request of the company; that no unsecured amount was due by this defendant to the company, no amount of existing indebtedness was stated in the contract, and nothing was intended to be covered thereby, all of which was known to the company by being within knowledge of its agents, one of whom was its district sales-manager Goudy. *725
In his answer Batten denied liability under the allegations of the petition and called for proof. He further answered (a) that he had been discharged from his obligation as surety because without his consent or knowledge the terms of payment of the sums required to be paid by said contract were definitely extended; (b) that the waiver of regular payment and the agreement to extend were based on the consideration and the return by Ellington of merchandise to the company the amount, description, and value of which was unknown to him, but all of which was well known to the company; (c) that the extension was without notice to him, without any consideration moving to him, without any agreement on his part, and for these reasons he was discharged. In an amendment to his answer he alleged in effect (1) that the contract sued on was one of guaranty; (2) that no amount of past-due indebtedness ($493.15) was inserted in the contract, and no other sum was inserted therein as past-due indebtedness when he signed it; (3) that all of the provisions of the contract with reference to the item of $493.15, alleged past-due indebtedness, were not binding as to him, but were mere duties as between the company and Ellington to do and perform, and that the contract sued on as to him was without consideration and a mere gratuitous guaranty; (4) that the contract of guaranty was not binding because the amount was written into the contract after he signed it, and further because the contract between the company and him provides for termination at any time; (5) that on information and belief Ellington had overpaid for the goods purchased since he signed the contract.
The company filed demurrers both general and special to the amended answers of both defendants. A good many of the special demurrers are but elaborations of the general demurrers. We will discuss their grounds more in detail in the opinion. The court overruled the demurrers. The company filed exceptions pendente lite. The case proceeded to trial and a verdict was returned in favor of the company for $233.29. The company filed a motion for a new trial on the general grounds, and afterwards added seven special grounds. The court overruled the motion and the company excepted and assigned error on its exceptions pendente lite as well as on the judgment overruling the motion for a new trial.
1. (a) We will first discuss the assignment of error on the exceptions pendente lite. Since the recovery for the merchandise sold after the execution of the contract was for the full amount claimed by the company, so far as the special demurrers are concerned, any error in overruling them was harmless to the movant. (b) In passing upon a judgment overruling a special demurrer, this court will look to the whole record to determine whether or not the judgment overruling the special demurrers resulted in harm to the complainant. Hall v.State,
It is further contended by the company that the demurrers pointing out that the answers sought to vary the terms of a written contract should have been sustained. We do not think that this contention is tenable for, as already observed, the issue was whether the amount of existing indebtedness was written into paragraph 10 of the contract before, or after the contract was signed. If written in afterwards, it would not vary the terms of the written contract to plead by way of answer that there was no amount in the contract at the time it was signed. The answers serve, under the provisions of this contract, to determine what the contract was when it was signed, and not to vary its terms after it was signed. (g) This leads us to a discussion of whether the answers as amended were sufficient to withstand the demurrers because they did not amount to a plea in the nature of non est factum. The amendments were properly sworn to and were sufficient to put in issue whether the $493.15 was written into the contract before or after the date of its execution. If, under the issues of this case as made by the petition and answers, a plea in the nature of non est factum was necessary, we are of the opinion that the amendments were sufficient for that purpose, even though they were not filed at the first term. This court said in Millen Hotel Co. v. First National Bank of Millen,
2. We come next to consider the special grounds of the motion for a new trial. Some are controlled by what has been said, and by the authorities cited in the first division of this opinion. (a) Ground 1 of the amended motion complains that the court erred in admitting, over objection, the testimony of Batten to the effect that the $493.15 was written into the contract after the defendant had signed it. This assignment is governed by what has been said in division 1 of the opinion and the decisions there referred to.
(b) Ground 2 complains of the admission of testimony by Batten, over objection of the company, as follows: "I had one conversation with him (meaning Clifford R. Ellington) about the contract before I signed it. He told me he didn't owe anything to the plaintiff whatever; and there is no amount on there at all." The admission of this testimony is assigned as error on the grounds: (1) That it was hearsay; and (2) that there was no plea of non est factum to authorize it. It is undeniably true that what Ellington told Batten was not admissible, but we do not think, under the record, that it was harmful to the company. Much of the testimony was to the effect that Ellington did not owe to the company the alleged existing indebtedness, and the company offered no evidence at all to prove the existence of such a debt except the contract, paragraph 10 of which, as pleaded in the company's petition, indicated the debt to be owing. We might add that the answers denied such a debt and demanded its proof. The testimony to the effect that no amount was written into the contract at the time it was being discussed between Ellington and Batten was admissible, as heretofore pointed out. This ground is without merit.
(c) Ground 3 complains of the admission, over objection, of testimony by Ellington, to the effect that at the time the contract was received by him from the company the $493.15 was not written in it. Error is assigned on the ground that this testimony tends to vary the terms of a written contract. This ground is without merit for reasons already discussed in division 1 of the opinion.
(d) Ground 4 assigns error because Ellington was permitted to *730 testify in effect, over objection of the company, that when he presented the contract to Batten, Batten readily agreed to sign it, and upon inquiry of Batten as to how Ellington stood with the company, Ellington informed Batten that he might owe the company a few dollars, but practically nothing; and further to the effect that the $493.15 was written into paragraph 10 of the contract after its execution. For the reasons hereinbefore stated in section (b) of this division of the opinion, there is no merit in ground 4.
(e) Ground 5 assigns error because the court charged as follows: "The defendants contend, gentlemen of the jury, by separate pleadings which they have filed, and amendments to the pleadings, that the $493.15 was not in the contract at the time of its execution, and that they are not indebted to the plaintiff in that amount, and they admit that they bought the amount of $580.10 worth of merchandise, but the defendant Ellington has made payments to the plaintiff in excess of this amount." This charge is assigned as error, because (1) there was no plea to authorize it; and (2) the same tended to alter the terms of a written contract when no plea in the nature of non est factum was filed under oath. This ground is without merit for the reasons given and the authorities cited in discussing the exceptions pendente lite in the first division of this opinion.
(f) Ground 6 assigns error on the following charge of the court: "Gentlemen of the jury, I charge you that the burden is on the plaintiff to prove by a preponderance of the evidence that at the time of the execution of this contract the amount alleged to have been inserted was in there, or that the defendant Ellington was indebted to the plaintiff on that date in this amount, if you find that it was that amount; or if you find by a preponderance of the evidence that no amount was inserted in the contract, then you would go further and find from the evidence what, if anything, Ellington was indebted to the plaintiff on that date, at the date of the execution of the contract; and whatever amount, if any, Ellington was due the plaintiff on the date of the contract, then the defendants would be bound for that amount; and if there wasn't any indebtedness on Ellington's part at the date of the execution of the contract, then they would only be bound for what was subsequently bought, less what was paid, if all of it wasn't paid." As we have heretofore observed, we think that this charge was clear and well *731 adjusted to the proper construction of the contract. The agreement on the part of Ellington and Batten, as shown by the contract, was in effect to give to the company authority to write into the contract the amount, if any, that Ellington owed at the time of its execution. This was merely directory, and as the court construed the contract, and we think properly so, Batten by his signature bound himself to become liable for whatever amount Ellington owed the company at the time of the execution of the contract. Whether or not this is a general rule, we are not called upon to announce, and do not do so; but under the particular wording of the contract, and the pleadings and the evidence submitted on the issues, we think that it was a correct charge. Certainly it was more favorable to the defendant than if the court had confined the company to proof as to whether the amount was written in the contract at the time of its execution. The company was given the benefit of a right to recover any amount that Ellington owed at the time of the execution of the contract, and we fail to see any resulting injury therefrom to the company. The error assigned on this charge is: (1) That there was no pleading to authorize it — we have hereinbefore dealt with this question; (2) that there was no issue as to whether the contract had been altered or changed — we have likewise hereinbefore dealt with this question; (3) that there was no sworn plea in the nature of non est factum under oath — in dealing with the pleadings, we have likewise dealt with this question; (4) that there was no issue under the pleadings that the $493.15 had been inserted in the contract since it was signed by the defendant — we have likewise disposed of this question. There is no merit in this ground.
(g) Exception is taken to the failure of the court to charge, without a written request, the following: "Gentlemen of the jury, the defendants have neither filed a plea of non est factum or in the nature of a plea of non est factum as to the contract sued on under oath, and therefore I charge you that you will find the amount that was due at the execution of the contract was $493.15." The failure to charge this principle is assigned as error, (1) because it was raised by the pleadings; (2) because there was no plea in the nature of a non est factum; and (3) because the court nowhere instructed the jury that when a contract is sued on, in order for the defendant to show that it has been altered, there must be filed a plea under *732 oath in the nature of a plea of non est factum; there was no plea of non est factum filed under oath; there was no issue made by the answers of the defendants that they did not sign the contract for the reason that they filed no plea in the nature of a plea of non est factum. In view of what we have hereinbefore said as to the exceptions pendente lite, this ground is without merit.
3. As to the general grounds, while the evidence is conflicting on the material issue whether or not Ellington owed the company anything at the time the contract was executed, we can not say as a matter of law that there was no evidence to sustain the verdict regarding the $493.15. Ellington, Batten, and a witness Minchew testified positively that there was no amount written in paragraph 10 of the contract before it was signed by the defendants. The testimony for the company was equally as positive that the amount was written in before the defendants signed it. There was no other proof submitted by the company that would demand a finding that Ellington owed the company any amount at the time of the execution of the contract. It is true that Ellington in his testimony admitted that he might have owed ten or fifteen dollars. As to this, it must be kept in mind that Ellington claimed to have overpaid his account for merchandise received after the execution of the contract. Since the jury returned a verdict for the company for the amount claimed for goods purchased after the execution of the contract, the jury could have believed that the company had received this ten or fifteen dollars which Ellington stated he might have owed. Construing the evidence most strongly to sustain the verdict, as it is our duty to do, we feel that this is a fair inference from all of the evidence. We think that the evidence authorized the verdict. Since it has the approval of the trial court, we are without authority to disturb it.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
Addendum
It is contended in the motion for rehearing that the court overlooked certain documentary evidence, and certain testimony in connection therewith. The documentary evidence referred to consists of two letters, one dated March 2, 1938, written by the company (accompanying the contract in controversy) to Ellington, appearing in the record as follows: "We enclose herewith your new contract expiring April 1st, 1939, properly filled one *733 by us. When executing this contract, sign it yourself in ink, and obtain the signatures (in ink) of two or more satisfactory sureties. Then sign the locality sheet and fill out and sign the dealer's property statement. The property statement on sureties is to be used as shown on the statement itself. Please also give us the names and addresses of reliable references, on the reference blank enclosed, who are well acquainted with your sureties. As you will note, we have inserted in the contract the amount of your indebtedness to us as of March 2nd, 1938, namely four hundred ninety-three and 15/100 dollars, which amount is also inserted in the statement at the bottom of this sheet. Carefully compare the amount in both places with your books, and if found correct, kindly sign the statement below (in ink) and return this entire sheet with your contract after you have properly executed the same. Please attend to both of these important matters at the earliest possible moment. [Signed:] Very respectfully, The J. R. Watkins Company, H. I. Greene." The other letter, dated May 9, 1938, written by Ellington to the company and accompanying the contract after it had been signed by the defendants, is as follows: "The J. R. Watkins Company, Winona, Minn., U.S.A. Dear Sirs: I have received the contract dated March 2nd, 1938, and have executed it and I am returning it herewith. When received this contract showed, and now shows, the amount of indebtedness due from me to the J. R. Watkins Company as of March 2nd, 1938, for goods and other articles it sold and delivered to me, as vendee, at Winona, Minn., and other regular places of shipment, to be four hundred ninety-three and 15/100 dollars, which I have carefully verified by my books and hereby acknowledge to be correct. Name: C. R. Ellington. Post Office: Douglas, Georgia." It is contended that the letter from Ellington to the company estops Ellington from denying that he owed the company the sum of $493.15, or that this amount was not, at the time, written into the contract. We are cited to the parol testimony of an officer-witness of the company to the effect that the contract accompanied the letter first above mentioned; that the contract had written in it the amount of the pre-existing indebtedness at the time it was mailed to Ellington, on March 2, 1938; and that on May 9, 1938, the company received a letter returning the contract signed by the defendants. Our attention is further called to a portion of the testimony of Ellington regarding his letter of May 9, *734 1938, to the company, written when he returned the contract to the company. The testimony referred to by counsel for the company was as follows: "That letter (indicating) of May 9, 1938, is my handwriting. That is my signature so far as I went. My eyes are bad, and I don't want to say that I signed them or run over one. I don't want to deny anything, understand. I couldn't tell you if that contract was signed and mailed to the company prior to May 9, 1938. That letter contains the truth so far as I know. Of course, it was mailed to me, but as I told you, I didn't remember. I mailed that contract in on May 9. I might have mailed the contract and letter together. I couldn't say. I can't tell by reading that letter. I said, `I have mailed my contract to Winona, to-day.' That letter is absolutely the truth. I suppose I didn't mail it until May 9, by that." The other testimony of Ellington with reference to the letter was as follows: "That is my signature on the bottom of the letter that is marked exhibit 3 [letter of May 9, 1938]. There is something else I want to explain about this. There was no such item filled in then, and you see it is a different colored ink and a different typewriter. It is my signature. I couldn't say whether the statement `which I have carefully verified by my books and hereby acknowledge to be correct' was in there when I signed it or not. I know there wasn't any amounts written in here when I signed it. Colonel, my signature is there, but I don't know how to explain it. It has got different colored ink there, but I wouldn't have signed that with $490 in there. They have so many forms that you can't keep up with all them. My name is different up there (indicating). I couldn't say whether my name and address on that letter and the date of that letter is not the same handwriting that the writing in here, to wit: `493.15;' the same typewriting; same kind of ribbon. It is my signature, but I never say anything like this in the ones I signed. That is my signature. I don't deny that." We have set forth the foregoing, in order that the witness's entire testimony concerning the letter of May 9, 1938, may be considered, rather than a portion of such evidence. Thus it will be seen that while Ellington did not deny his signature, he did deny that the sum of $493.15 was written in the letter at the time he signed it, and indicated that it was a form letter. This testimony of Ellington, together with the positive testimony of the witness Minchew, and with that of Batten, was clearly sufficient, in our *735 opinion, to carry to the jury the issue whether or not the amount was written in the contract before or after it was signed, and the jury resolved the issue against the company. So far as the evidence goes, practically the entire testimony revolved around this issue and the court, in the original opinion, had this view in mind. When we used the statement, "There was no other proof submitted by the company that would demand a finding that Ellington owed the company any amount at the time of the execution of the contract," as set out in paragraph 4 of the motion for rehearing, quoting from division 3 of the original opinion, we had further in mind that the company submitted no further evidence establishing the existence of a pre-existing indebtedness, such as statements for merchandise shipped by the company to the defendant Ellington, and remittances therefor (if any) prior to the execution of the contract.
We have carefully reviewed the original opinion in the light of the motion for rehearing, and are still of the opinion that the court did not err, for any of the reasons urged, in denying the motion for new trial.
Original opinion adhered to. Broyles, C. J., and MacIntyre,J., concur.
