31 Ga. App. 479 | Ga. Ct. App. | 1923
(After stating the foregoing facts.)
It is insisted on the part of the plaintiff in error that in no event should a verdict have been directed for the defendant, but that if the plaintiff did not prove his case as laid, a nonsuit would have been the proper disposition of the case. It is maintained further, however, that the evidence would have authorized a recovery and that the case should have been submitted to a jury. On the dther hand it is contended by the defendant in error that the plaintiff having failed to show whether a loss was sustained by the defendant in the sale of the second-hand car, no basis for a recovery was established in the proof, and that under the evidence adduced the verdict was properly directed for the defendant.
We are satisfied that the plaintiff did not disprove his case. If he merely failed to prove it the court should have granted a nonsuit instead of directing a verdict. But was the plaintiff entitled to go to the jury at all ? The defendant in error insists that the evidence of the plaintiff is equivocal and uncertain, and should be construed most strongly against him in reference to the time of the making of the agreement whereby he would share his part of the loss, presumably an equal part, sustained in the sale of the second-hand ear, and that when the evidence is so construed it would appear that this agreement was entered into before the new car was sold and was therefore a part of the original contract for a division of commissions. Assuming that this contention is well founded, we are nevertheless of the opinion that the plaintiff sufficiently carried the burden of evidence to avoid a nonsuit or other adverse direction
“Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.” Civil Code (1910), § 4350. “Recoupment may be pleaded in all actions ex contractu, where from any reason the plaintiff under the same contract is in good conscience liable to defendant. And in all cases where, under the laws of this State, recoupment may be pleaded, if the damages of the defendant shall exceed in amount those of the plaintiff, the defendant shall in such cases recover of the plaintiff the amount of such excess. Civil Code (1910), §4353.
If the plaintiff was not entitled to recover his full proportionate share of the commissions as originally agreed upon, the onus was upon the defendant to show that fact by way of defense. In a suit to recover the agreed value of services rendered under a specific contract, where the plaintiff proves the contract and the performance of the services, a prima facie case is made out, and the burden is shifted. It then devolves upon the defendant to establish any facts which he may claim should diminish or defeat the plaintiff’s recovery as a result of his failure to comply with an independent covenant arising under the same contract. Compare Gem Knitting Mills v. Empire Printing Co., 3 Ga. App. 709 (3) (60 S. E. 365).
Furthermore, whether there had been a loss on the sale of the second-hand car, in which both the parties should share, was a matter more logically within the knowledge of the defendant. “One who assumes the burden of proof is only required to carry the burden of evidence until his contention has been prima facie established. The position of the ‘burden of proof’ is determined by the pleadings, and as to this the burden of proof is unchanging; once imposed it remains. But the burden of testimony may be shifted and alternate between the parties according to the contingencies and crises of the trial. A trial judge, in declaring that the
Conceding therefore that the defendant in error is right in saying that the agreement for a division of losses on the old car should be treated as a part of the original contract, we think it was error on the part of the trial judge to direct a verdict in favor of the defendant at the close of the plaintiff’s evidence, and that it would even have been error to award a nonsuit.
Being of this view, we hardly think it necessary to go into a further contention of the plaintiff in error, opposite to that of the defendant in error last referred to, that the agreement to share any loss which might result in the sale of the old car was subsequent to the original undertaking and was a nudum pactum. We are of the opinion, however, that, in so far as appears from the evidence adduced, there was no consideration for the agreement in reference to such loss if it was in fact a new and distinct undertaking entered into after the new car had been sold and the check therefor with the old car at the agreed valuation of $600 had been accepted in payment.
If such agreement as to a sharing of the loss was thus subsequent it would of course not be binding without a consideration. “An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” Civil Code (1910), §4329. A settlement or mutual accord and satisfaction is binding on both parties. Civil Code (1910), § 4330. But it does not appear as a matter of law that there was a bona fide dispute (Riley v. London Guaranty & Accident Co., 27 Ga. App. 686 (1 c), 109 S. E. 676), or that
In any view of the evidence, it appeared that the agreement by which the plaintiff was to receive one half of the commissions on the sale of the new car was never abrogated. The testimony of the plaintiff made a prima facie case, and the opposite party should then have been required to defend.
It is unnecessary for us to determine whether the agreement for a share .of losses in the sale of the second-hand car should be considered under the evidence as a part of the original contract or as a subsequent new and distinct agreement, for in either event the case must go back. This question will likely be developed more clearly upon another trial, when it may be determined whether such agreement was binding under the rules herein expressed.
Judgment reversed.
