15 Ga. App. 353 | Ga. Ct. App. | 1914
According to the allegations of the petition, Gainey and others made a written contract with Mauldin Brothers (alleged to be a firm composed of J. L. Mauldin and C. E. Mauldin) to plant ten acres in collards for seed, and to sell the seed obtained from the ten acres' to Mauldin Brothers at 20 cents' per pound
The plaintiffs filed general and special demurrers to the answer, which were overruled. On the trial the court permitted the plaintiffs to amend their petition, over the objection that the amendment introduced a new cause of action, ■ was not verified by proper affidavit, and would confuse the cause of action and prevent a clear issue from being formed. The amendment alleged: “After-the
1. The exception to the court’s refusal to continue the ease is expressly abandoned in the brief of counsel for plaintiff in error, and the various assignments of error as to rulings upon evidence must, under the well-settled rule, be treated as abandoned, because there is no reference to them in the brief and argument of counsel for the plaintiff in error.
2. We think the court erred in permitting the amendment. As has been remarked by Chief Justice Bleckley, the rule of amendment is about “as broad as the doctrine of universal salvation” (Murphy v. Peabody, 63 Ga. 524); but it is fundamental that a new and distinct cause of action can not be engrafted upon the plaintiff’s petition. Civil Code, § 5683; Groover v. Tatnall Supply Co., 10 Ga. App. 679 (73 S. E. 1083); Lamar v. Lamar, Taylor & Riley Drug Co., 118 Ga. 850 (45 S. E. 671); Tucker v. Ball, 68 Ga. 814; Hall v. Walker, 66 Ga. 483. The original petition was brought to recover damages for the breach of a contract, which was expressly pleaded, whereas, under the amendment, the plaintiffs sought to recover $357.40 upon a claim that Mauldin, in a fiduciary capacity, as their agent, had come into possession of that amount of their money, which it was his duty, in equity and good conscience, to pay over to them. The contract required Mauldin to buy the
- 3. From the recitals of the bill of exceptions it appears that in accordance with the provisions of section 4847 of the Civil Code, and before argument of counsel, the defendant’s counsel delivered to the presiding judge a written request that the charge of the court be reduced to writing and read to the jury; and in response to the request the court prepared notes of the charge and read them to the jury, the defendant making no objection at the time the charge was made. After the jury had retired and had been out for about three hours, they were brought before the court to be recharged, and thereupon the judge “reread from his written charge,” but at the same time gave oral instructions and amplification of the charge; and to this the defendant excepts. In the oral instructions the court charged the jury that if they believed, from the evidence, that the plaintiffs agreed to let the defendant out of the contract and make him their agent to sell the seed, then they would be entitled to “whatever amount he holds in trust for them at the Citizens Bank;” and that if the jury believed that the plaintiffs and the defendant entered into a new agreement, but the new agreement was not intended to replace or take the place of the original -contract, then it would be their duty to find just such damages for the plaintiffs under the original contract, as the evidence' might warrant; but on the other, hand, if they believed that the new agreement was intended as a novation and settlement of the original contract, then it would be the duty of the jury to find just such' damages under the new agreement as the evidence warranted. The plaintiff in error insists that the additional charge was error
4. Under the assignment of error that the verdict was contrary to law and without evidence to support it, the plaintiff in error insists that the plaintiffs were required to show that they had complied with the condition precedent in the contract with relation to furnishing seed well cleaned and in merchantable condition. Under sections 4223 and 4224 of the Civil Code, the plaintiffs were not entitled to recover damages based upon a breach of the contract by the defendant until they had shown that their cross-obligations under the contract had been complied with. Properly .construed, the words “well cleaned,” in the contract, seem to be qualified by the word “merchantable,” used in the same connection, and it devolved upon the plaintiffs to show that the seed were so cleaned as to be merchantable in accordance with the usages of the trade in selling seed. There was evidence that Cairo was a seed market, and that generally seed cleaned and delivered by farmers were necessarily recleaned in preparing them for the wholesale trade. What the parties meant by the words “well cleaned” may be demonstrated by evidence aliunde the contract. After all, the question as to whether the seed were well cleaned and in merchantable condition is a question of fact for a jury, in the light of the evidence submitted.
5. As to whether there was such a mere mutual temporary disregard of the terms of the contract as would operate to annul the original agreement was a question for the jury. Before the contract could have been breached by the defendant, there must have
6. In the first ground of the amendment to the motion for new trial it is insisted that the court erred in admitting, over the objection that the testimony was irrelevant and prejudicial to the defendant, testimony that the witness “swore out a warrant for Mauldin for larceny after trust and had him bound over to the superior court.” This testimony should have been repelled, because the character of a party to a civil action is not ordinarily an issue, and its only effect in the present case must have been to prejudice the jury against the defendant. The witness could properly have testified that he had failed to get the money from Mauldin after demand, and- Mauldin’s refusal to pay it upon demand might be sufficient to evidence bad faith upon his part, but the subsequent action of the witness and the result of an investigation which should properly have been shown by the written judgment, if it was competent to show the fact at all, was entirely beside and apart from any issue properly before the jury.
7. In the second and third grounds of the amendment to the motion for a new trial error is assigned because the court admitted testimony to the effect that the defendant admitted that he had the seed sold at a profit, and because the court failed to rebuke plaintiffs’ counsel for stating that this evidence was offered to show bad faith. While it is the duty of the court to see that neither party’s rights are prejudiced by improper remarks by counsel (in proper cases to the extent of ordering a mistrial), it is not made to appear that either the admission of the evidence or the remark of counsel was prejudicial in the present ease.
8. In the fourth and fifth grounds of the amendment to the
Judgment reversed.