38 Ga. App. 66 | Ga. Ct. App. | 1928
(After stating the foregoing facts.)
Irrespective of whether the plea of set-off would have stood without the aid of the agreement between the attorneys, we think the agreement was such that it should have been enforced, and that in view of it the plea should not have been stricken. Rule 19 of the superior court (Civil Code of 1910, § 6278) provides that “No consent between attorneys or parties will be enforced by the court,
In Bradshaw v. Gormerly, 54 Ga. 557, several executions in favor of different plaintiffs were levied upon certain land as the property of the same defendant, and the same person filed separate claims. One of the claim cases was tried and the property was found subject. Thereupon the claimant determined to carry that case to the Supreme Court, and it was agreed by counsel that the other cases then ready for trial should be continued and abide the decision of the Supreme Court in the one case carried up. The judgment of the lower court was affirmed, the property was sold, and the proceeds were in order for distribution. The claimant then withdrew his claims in the cases that were continued and sought to have the money arising from the sale of the land paid to him and not to the plaintiffs. On the trial of the money-rule the plaintiffs offered to prove the agreement of counsel and the assent of the claimant thereto, and the court refused to allow them to do so. The fund was awarded to the claimant and the plaintiffs excepted. The Supreme Court, in ruling that the withdrawal of the claims by the claimant was a violation of his agreement, said: “He himself assented to what his counsel agreed, and it would be to permit a gross fraud to allow him to repudiate his bargain after lie had made it and lost the case here. If he had not assented in person, he would have been concluded by the acts of his counsel; for the agreement was executed by plaintiffs not trying but continuing their
In Seals v. Stocks, 100 Ga. 10 (30 S. E. 278), the controversy was in relation to the effect of an order procured by the plaintiff dismissing an action of bail-trover in which the bond had been given by the plaintiff. It was insisted by the plaintiff that the suit had been dismissed with the understanding that the only effect would be a mere failure to recover in the action, while the defendant contended that because of such dismissal he was entitled to a judgment against the plaintiff and his sureties on the bond. In the opinion of the Supreme Court it was said: “While there was no agreement in writing which the court could enforce as such, there evidently was a definite understanding as to the legal effect of an order of court which the plaintiffs’ counsel, as a result of the conference had with counsel for the opposite party, caused to be entered under the honest belief that the latter consented thereto. It is true that Rule 20 [now Rule 19] of the superior courts declares: ‘No consent between attorneys or parties will be enforced by the court, unless it be in writing and signed by the parties to the consent, where such agreement is denied by the opposite party.’ But it was held in Bradshaw v. Gormerly, 54 Ga. 557, 559, that though such an agreement rested wholly in parol, yet, if acted upon in good faith and partly executed by one of the parties thereto, the opposite party would be estopped from saying that the agreement was not in writing. It is clear that counsel for the plaintiffs would not have procured the order in question to be entered but for the fact that he relied upon what he believed to be a distinct understanding and agreement between himself and opposite counsel that such order should operate as a final disposition of the case; and having acted upon and fully executed this agreement, it is binding upon the defendant as effectually as though it had been reduced to writing and signed by his counsel. It makes no difference that, owing to a misconception of the legal effect of the order, the end in view failed of accomplishment. This result grew out of the mutual mistake of counsel as to a matter of law, viz.: as to how their agreement could be legally carried into effect. It would be manifestly unfair to allow one of the parties to profit thereby, deriving an advantage not contemplated by the agreement as actually made. Indeed, our code distinctly recognizes the equitable principle
While in the foregoing discussion we have proceeded upon the assumption that the case should be determined under Rule 19 of the superior courts, and have cited cases from the Supreme Court which apparently would justify this view, the case of Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), makes it doubtful whether the rule is really applicable. Here, as in the Beverly case, the controlling principle would seem to lie not in the rule of court, but in the .equitable rule of estoppel. In that case the Supreme Court said: “The case does not depend upon the rule of court that agreements between counsel in regard to matters of practice in the case must be in writing in order to be enforceable, but upon the question of whether the plaintiff acted upon certain statements and assurances as to the dismissal of suits, so that it would operate upon her as a fraud to take advantage of the fact that she did not file pleas in due time." In this view, it perhaps would have been more logical for the defendants to have alleged the facts touching the agreement in an amendment to the answer and to have submitted proof thereof in the trial of the main issue as formed by the plea. But since there was no objection to the procedure by which the defendants attempted to resist the motion to strike, and since the pleadings and the evidence in relation to the agreement were as a matter of law sufficient to let in the plea of set-off, and, the plea having thus been improperly stricken, it is immaterial whether, the issues in regard to the agreement were submitted to the court rather than to the jury. Turner v. Planters Chemical Co., 21 Ga. App. 480 (2) (94 S. E. 616). In any view, the counsel .having agreed that the issues as made in Godley’s suit upon the note and in the plea of set-off filed by the defendants should all be tried together, and the agreement being one which they were authorized to make (Commercial Union Assurance Co. v. Chattahoochee Lumber Co., 130 Ga. 191, 60 S. E. 554; Bryant v. Elberton
It is plain that the suit of Oliver & Oliver against Godley would not have been dismissed if it had been thought by counsel or parties in that case that the plea of set-off in the other case would thereafter be put in jeopardy by a motion to strike.. And we can not assent to the proposition that the dismissal of the suit against Godley at the expense of the plaintiffs therein constituted no loss or damage to them, even assuming it be true, as asserted by counsel for Godley, that there is nothing to prevent the partnership from bringing another action for the subject-matter of the set-off.
Moreover, we are of the opinion that, independently of all extraneous considerations, the plea of set-off was good. It is true that if Godley had sued only one of the indorsers, the defendant could not have pleaded as a set-off the claim of the partnership of which he was a member. Such a plea would have involved the right of a stranger to the action, whose consent to such use of the partnership claim could not have been assumed. Bishop v. Mathews, 109 Ga. 790 (35 S. E. 161); Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243; West v. Kendrick, 46 Ga. 526; Wilson v. Exchange Bank, 122 Ga. 495 (50 S. E. 357, 69 L. R. A. 97, 2 Ann. Cas. 597); Metcalf v. Peoples Grocery Co., 24 Ga. App. 663 (101 S. E. 768); Nellis v. Green, 36 Ga. App. 684 (2) (137 S. E. 843), and cit. In Bishop v. Mathews, supra, while both members of the partnership were sued, only one answered or attempted to plead a set-off and there was nothing to show the consent of the other partner thereto. In the instant case, however, the suit was upon a note in which the obligation was joint, even though at the same time several, and the plaintiff elected to bring a joint action. The individual defendants were the same persons, and all the persons who composed the partnership whose account against the plaintiff was pleaded as a set-off and joined in pleading it. All parties to both claims were before the court as parties to the issue, and no right of any other person appears to be infringed. Between the parties themselves any mutual demands existing at the commencement of the suit may be set off. Civil Code (1910), § 4340. Set-off must
Judgment reversed.