109 Ga. 579 | Ga. | 1900
A motion was made to dismiss the present-writ of error, on the ground that Messrs. Cutts & Lawson were-not made parties to nor served with the bill of exceptions. This motion was not well taken. Our views upon it and upon the question therewith closely connected, viz., whether or not-that portion of the judgment now under review allowing these attorneys a fee of $1,500 was erroneous, will be given immediately after stating the facts of this case; but, as will be perceived, the particular facts pertaining to the two matters just referred to, for the obvious reason that it would have been very inconvenient to present them at the beginning of the following preliminary statement, appear at its conclusion.
During the March term, 1897, to wit, on May 22 and August-7 of that year, we dealt with separate writs of error growing out of the litigation involved in this case. See 102 Ga. 563, 593. The decisions-rendered on these two occasions related exclusively to preliminary matters. The case is now here on its merits after final judgment in the trial court, and presents-questions which we have not heretofore considered or passed upon. The record discloses that Mrs. Martha B. Russell was-the owner of a shingle-mill, the operation of which was the subject-matter of several contracts and finally of much controversy between her and the Mohr — Weil Lumber Company. In most of the transactions between her and it, she was represented by her husband, A. B. Russell, as her general agent. We will therefore, for convenience, though both Mr. and Mrs. Russell are parties,to the case, hereinafter use simply the name “Russell” when referring to them, and, for the sake-of brevity, will allude to the' other party as “the company.”
. On March 13,1893, the company entered into a written contract with’ Russell, by the terms of which the former agreed tó make to the latter'certain advances and to take the entire product of the mill at specified prices, Russell contracting tó fur
In January, 1897, Russel took possession of the mill, and discharged all the company’s employees. It filed an equitable-petition to enjoin him from further interfering with the property. The answer averred that the conduct of Russell in taking possession of the mill was lawful and proper, for the reason that the company had in many ways (the particulars as to-which were set forth) violated its contract, to the injury and damage of Russell. The answer -was in other respects one in the nature of a cross-bill. It denied that Russell owed the-company anything, because, as alleged, the output of the mill, properly and efficiently operated under the terms of the contract, would have been much more than sufficient to pay off all of Russell’s indebtedness. It further set up that the company, by its failure to so operate the mill, had greatly damaged Russell, and prayed for an accounting, alleging that the same-would show that the company was indebted to Russell a large-balance, for which judgment was asked. There was also a prayer for the appointment of a receiver to take possession of and manage the property until the respective rights of the parties could be ascertained and fixed by an appropriate judgment. A receiver was appointed and other interlocutory proceedings were had, but further reference thereto is, for the reason stated at the outset, not now necessary. The case was referred to an auditor, whose report, as will presently more fully appear, was in the main adverse to the company. At the hearing before him much evidence was introduced. To sum the same up very briefly, it may be said that the principal allegations of both the petition and the answer were supported by testimony — in other words, there was much conflict. One of
To the auditor’s report the company filed six exceptions of fact and twelve of law. One of the latter (the 7th) was, however, subsequently voluntarily withdrawn. The court, on demurrer, struck all the remaining exceptions, both of law and of fact, except the 2d and 3d exceptions of law, which were overruled as being without merit. The company assigns error upon this disposition by the court of its exceptions.
After the trial judge announced thathe would sustain the demurrer to the exceptions of fact, the company offered to amend those exceptions and also its exceptions of law. The motion Avas denied, and this is assigned as error. Before the final judgment was entered, Messrs. Cutts & Lawson presented to the court a petition which, after stating the case, began : “ And now come
We will now deal briefly — for otherwise this opinion would become too greatly expanded — with the company’s exceptions to the auditor’s report, stating generally in connection with each the facts essential to an understanding of what we rule.
The company, while authorized to make at Russell’s expense all needed improvements and repairs upon the existing plant, was not at liberty to erect practically a new one or to add extraordinary and expensive machinery or appliances, such as the new boiler, and charge the same to Russell’s account. It is one thing to keep a mill already built and equipped in good running order, and quite another to erect virtually a new one and furnish it with new machinery.
' The auditor’s finding that the notes had been paid off did not, of course, mean that they had been actually taken up by Russell, but that, allowing him proper credits for the products
Below will be found a ruling that the 2d exception of fact did not properly attack the auditor’s finding that there was no agreement in parol, effective after the company took charge of the mill, to reduce the price of shingles. This question is, however, properly raised by one of the exceptions now under consideration, and should be dealt with by the trial court, along with other matters hereinabove pointed out, at the next hearing.
In the 1st exception of law the point is made that the auditor erroneously found that there was usury in the notes given by Russell to the company. This exception was not well taken, for the language used by the auditor in the finding therein referred to does not bear the construction thus placed upon it. As matter of fact, the auditor’s finding as to usury related exclusively to the debt on open account.
The 9th, 10th and 12th exceptions of law merely present loose and general objections to conclusions which the auditor evidently reached by making calculations upon statements of
Judgment reversed.