Newcomb v. Wagoner, 35 Ga. App. 29

Newcomb v. Wagoner

35 Ga. App. 29 | Ga. Ct. App. | 1926

Jenkins, P. J.

(After stating the foregoing facts.) This case has been transferred to this court by the Supreme Court.

Whether or not the rule requiring that a bill of particulars, when demanded by demurrer, shall accompany the plaintiff’s petition applies in suits for an accounting (see Gould v. Barrow, 117 Ga. 458, 43 S. E. 702), such could not be the rule in the instant caso, where from the petition it appeared that under the contract *31forming the basis of the suit the defendant “was to keep all books of account, statements, and accounts showing the business operations of said two restaurants, and defendant did keep such books and records,” and where it further appeared that the plaintiff did not have and was refused access thereto.

If, when the plaintiff signed the last receipt for the amount due on his current monthly drawing account, which stipulated on its face that it was in full for services to that date, it appears that it was in the minds of the parties that it was intended to cover all claims for services, both current drawing account and his distributive share of the net profits, the signer of the receipt would be bound by the stipulation (Riley v. London Guaranty & Acc. Co., 27 Ga. App. 686, 109 S. E. 676; Bass v. Roberts Coat Co., 4 Ga. App. 520, 61 S. E. 1134); but where, under a contract of employment by the owner of an enterprise with the plaintiff as its manager, the manager was to receive out of the gross receipts of the enterprise a stated amount on a monthly drawing account, and was further to receive as compensation a stated portion of the net profits, if any, which the enterprise might produce, the fact that the manager may have signed a receipt covering his accrued monthly drawing account as in full for services would not estop him from asserting his claim for any profits due him, unless his claim for them was intended to be covered thereby. Such a receipt is open to explanation (Walters v. Odom, 53 Ga. 286; City Bank of Macon v. Kent, 57 Ga. 283, 284 (6); Georgia Railroad Co. v. Gouedy, 111 Ga. 310 (2), 312 (36 S. E. 691); Macon Canning Co. v. Roberts, 26 Ga. App. 147 (4) (105 S. E. 734)); and the signer should be permitted to show that the payment for services referred to therein 'was that which he was entitled to receive monthly from the gross receipts, and was not intended to include his claim for such portion of airy net profits as under the other part of his contract he might have been entitled to. In Waits v. Baker, 78 Ga. 622 (1), 628 (3 S. E. 773), Chief Justice Bleckley, speaking for the Supreme Court, said: “The words fin full/ etc., ought to be interpreted with reference to the subject-matter of the settlement on which the instrument wras founded.” The court therefore did not err in giving the charge excepted to or in refusing to give the charge requested.

The evidence before the auditor and before the jury on its *32trial of the exceptions of fact is very voluminous. It is not altogether as clear as could be desired. This may have been brought about to some extent by the misfortune of the defendant in the destruction of the books and records in his custody by fire; but we do not feel authorized to set aside the finding of the auditor and the verdict sustaining it, as being contrary to law on the theory that it is absolutely without any evidence to support it.'

Judgment affirmed.

Stephens and-Bell, JJ., concur.