109 Ga. App. 251 | Ga. Ct. App. | 1964
Lead Opinion
(a) Certain facts appear without ma
(b) Bell contends, however, that since the jury found in his favor it necessarily found that he had a right to recover, and that he should therefore have judgment for the amount which the jury would have been authorized to return in his favor (that is, $397,304.80) whereas the defendant contends in a special ground of its motion for a new trial that the verdict rendered must fall because it cannot under any theory of the case be sustained in the sum in which it was rendered, citing Roddenberry Hdw. Co. v. Merritt, 17 Ga. App. 425 (87 SE 681), Avery & Co. v. Middlebrooks, 20 Ga. App. 724, 725 (93 SE 227), and King v. Loeb, 93 Ga. App. 301 (1) (91 SE2d 532). The latter case contains a necessary holding only to the extent that where the plaintiff’s proof does not support a verdict in the amount found by the jury, the remedy is not by judgment notwithstanding the verdict. Whether or not a motion for a new trial would afford a remedy must depend on the facts of the case. It would definitely support such a motion where the amount of the verdict is not within the range of the evidence. The problem here is not this problem: the jury might have returned a general verdict for the defendant; the jury might have decided that Bell was entitled to his 10% on the value of stock sold by others to the public in the sum of $22,853.00, or it might have decided that he was entitled because of the breach to 10% of all stock issued and disposed of, which latter would include the merger stock (entered on the books of the company as a sale but not sold to the public) making the total figure $393,391.80. The contention is that no other figure (disregarding interest of course) can be supported by evidence and renders good the general grounds as
Former Code § 56-522 provides in part that no person selling stock in an insurance company “shall receive either directly or indirectly more than 10% of the sales of any of said stock.” It is contended by the plaintiff in error that the allegations of Bell’s petition, and his testimony on the trial of the
Special grounds 6, 7 and 8 of the motion for a new trial will be considered together. In his petition which was held by the court to state a cause of action in Piedmont Life Ins. Co. v. Bell, 108 Ga. App. 225, supra, the plaintiff alleged that the contract on which he sued was entered into “by the defendant insurance corporation at a formal and organized corporate meeting of said defendant insurance corporation at which all of the directors, stockholders and officers of the defendant insurance corporation were present and acting, namely, It. W. McGarity, H. Benson Ford, Alexander E. Wilson, Jr., Eldon R. Lindsey, Sam Kendrick, Emmet H. Steele, Sr., Harrell W. McEachern and W. C. Cottingim.” The charter was granted in 1946 and subsequently thereto, but before $100,000 was raised on stock subscriptions, the meeting was held at which according to Bell’s testimony the contract was consummated. Minutes of this meeting were among those subsequently lost. The eight persons named above were incorporators and were present at the meeting. All had subscribed for stock and the corporate officers were chosen from among them. Subsequently, after the stock was fully subscribed in 1947, another meeting was held at which it was voted to ratify “all actions taken by the incorporators in connection with the establishing and organization of the company, obtaining of a corporate charter, selling of the company’s capital stock and acceptance of subscriptions for said stock, the designation of a temporary Board of Directors to handle the company’s affairs pending the first meeting of the stockholders, and any other activities or functions performed for or in behalf of the company.” The defendant objected to admission of testimony by Bell as to the nature of the agreement on the ground that any such contract at the time entered into was ultra vires,
Code § 56-203 as it existed in 1946 provided for the issuance of a certificate by the Secretary of State granting “full authority . . . to exercise the powers and privileges of a corporation.” Thereafter the incorporators and persons becoming stockholders “shall be a corporation by the name specified in said certificate, and shall possess the powers and privileges and be subject to the provisions contained in this Chapter.” Code § 56-204. Thereafter the company “may open books of subscription to obtain the full capital stock of the company, and, after giving such notice as they may deem expedient, may from time to time receive subscriptions until the whole capital stock shall be subscribed. The capital stock of said company shall be divided into shares of $10 each, and shall not be less than $100,000 for each class of insurance to be engaged in, and no insurance company chartered under this Chapter shall commence the insurance business until at least this amount for each class of insurance to be engaged in shall have been paid in cash. . .” Code § 56-207. (Emphasis added). The defendant’s contention is that under the last quoted section it was beyond the power of the company to contract with Bell because this was in effect engaging in the insurance business. We do not agree that such was the meaning of the statute. As stated in Home Title Ins. Co. v. U. S., 50 F2d 107, 110: “The business of insurance consists in accepting a number of risks some of which will involve losses, and of spreading such losses over all the risks so as to enable the insurer to accept each risk at a slight fraction of the possible liability upon it.” Getting stock subscriptions is a proper part of the business of the corporation, but it is a condition precedent to commencing the business of insurance. This result was reached in Hughes v. Four States Life Ins. Co. (Tex. Civ. App.), 164 SW 898, where the court held: “It is not believed that the selling of the stock for which the notes in suit
An attorney who acted as general counsel for the defendant between March, 1949, and January, 1951, was called by the plaintiff. His testimony was that after becoming general counsel he consulted with the plaintiff and others and attempted to reduce to writing the prior agreement between the parties; that Mr. Bell would not sign the agreement he drew up at that time because he contended it was inaccurate in given respects, and in other respects was not satisfactory to the directors of the corporation. The witness discussed the provisions of his draft in some detail and pointed out that it had been signed by neither party. One of the differences of opinion involved the question of whether Bell should be paid commissions on stock bought by previous stockholders under option warrants, in which connection counsel had written Bell on October 14, 1949: “All of the temporary board of directors say that it was specifically understood that no commissions would be paid on the sales of stock to be made when the option warrants were exercised.” He then testified over objection that in his opinion, in the absence of such a provision in the contract, Bell would be entitled to commissions on such sales. The construction of a contract, once its terms are ascertained, is for the court. Early v. Kent, 215 Ga. 49 (2) (108 SE2d 708). This witness was not construing an ascertained and unambiguous contract; he was testifying as to his investigations leading to a conclusion on his part as to what the contract was in fact, which was a part of his job as counsel for the defendant, and the testimony, although stated as an opinion, in fact concerned the terms of the contract as disclosed by his investigation and not the interpretation of agreed terms. Special ground 9 contains no reversible error.
There is no error in the rulings of the trial court.
Judgments affirmed in case Nos. IflJfil and Jfllfi2. Cross bill of exceptions dismissed.
Concurrence Opinion
concurring specially. I concur in the judgments and the opinion. I specially concur in the ruling in Division 1(a) solely because we are bound by decisions of the Supreme Court. In my opinion a finding for a plaintiff in an intermediate amount not authorized and supported by evidence may be excepted to by the defendant as being contrary to and not supported by the evidence. Of course a defendant may not except to a verdict where a larger amount was demanded or authorized by the range of the evidence. I think the Supreme Court cases holding generally that a defendant can not except to a verdict which was too small come under three categories: (1) where a larger amount was demanded; (2) where a larger amount was authorized under the “range” of the evidence; and (3) cases where the amount rendered was not under any theory or reasoning supported by evidence and were a result of compromise or guess but where the court mistakenly applied the rule applicable to categories (1) and (2).