90 Ga. App. 292 | Ga. Ct. App. | 1954
In the first special ground of his motion, Scott complains that the trial judge devoted his charge more to Smalling’s contentions than to Scott’s, and that the charge was therefore argumentative in Smalling’s favor. This ground is without merit. The judge stated to the jury that he would “not attempt to review or summarize all those contentions except insofar as is necessary to give you the law applicable to the case”; and, after giving a fair summary of the pleadings, he stated: “In charging you as I have certain specific contentions of the parties, I do not mean to exclude other contentions. You
In the second special ground of his motion for new trial, Scott contends that the court erred in permitting Smalling’s counsel to question Scott on cross-examination as follows: “If the Government man looking at the books would charge you in taxes just as much under the circumstances outlined where you had put twenty-five dollars by your contention, five-thousand odd by another contention, into your pocket, then what was the purpose of committing the fraud? Now who, if you and Mr. Smalling divided it equally and it was nobody’s business except yours and Mr. Smalling’s and the Government would get the same amount of taxes, what was the purpose in that subterfuge?” Scott answered, “I don’t know; just divided it up there; that’s all.” The objection was that there was no subterfuge; that the question was improper; that the books showed Smalling received his half of the profits; that Scott was entitled to reimbursement for the expenses of the job which he had paid; and that the books would speak for themselves.
The question objected to was within the scope of thorough and sifting cross-examination. Smalling by his answer challenged the accuracy of the partnership books, which did not show Scott’s receipt of the payment by Dr. Brown. Scott testified that Dr. Brown paid him $9,313.67 in cash, and that he deposited $4,000 of this amount in his personal bank account, split the profit of $1,214.83 with Smalling, and stuck the rest in his pocket, without notifying the bookkeeper. Scott further testified: “That probably would save me in paying taxes; I know it "would. . . I know this $5,000 didn’t show on the books.” The record of this particular job for Dr. Brown showed expenses of $8,098.84 and $607.41 as one-half of profits paid to Smalling, but did not show any payment received from Dr. Brown. The
In support of the general grounds of his motion for a new trial, Scott contends that, of the $346,000 received by the partnership for the Griffin school job, Smalling admitted having received $83,000 that he failed to account for and did not turn over to Scott. Scott contends that such admission was sufficient to make a prima facie case of accountability against Smalling under the rule of Garrett v. Morris & Co., 104 Ga. 84 (30 S. E. 685), to the effect that a partner coming into possession of partnership funds is presumed to be liable therefor and must show payment, setoff, or some other legal defense to discharge himself. But if Smalling received $83,000, Scott may have received $263,000. The accountant found that Scott had received $242,000. Although the partnership books showed expenses of $333,000 on this job, there was no evidence as to whether Scott or Smalling had paid these expenses. If a prima facie case of accountability was proved against Smalling on this one undertaking, such a case was also proved against Scott and for a greater amount.
As for the whole venture, Scott testified that he did not know how much Smalling owed him, and Smalling’s testimony was that he did not know how much Scott owed him. Sidney Backer, the accountant, basing his opinion in part on evidence which was not introduced, stated: “We have not been able to reconcile the expenditures between the schedule one statement, which is a summary of the contract operation, and the disbursements as reflected in the two exhibits for accountability. There is a difference; the difference there would be $30,174.87. . . One way of putting it might be that $30,000 has been paid out or spent or used in some way that is not reflected. In that case it
The evidence authorized the general verdict for the defendant, and the court properly denied a new trial.
Judgment affirmed.