23 Ga. App. 251 | Ga. Ct. App. | 1919
Suit was brought against Fitzpatrick and English upon a guaranty entered into by them in behalf of one Norris for the faithful performance of a contract touching the sale of merchandise and a proper accounting therefor. The petition alleged' that the balance due on the contract amounted to $805.49 principal, and the itemized statement attached thereto .as an, exhibit included divers things, but nowhere mentioned or referred to. any boxes as an item of charge against the purchaser. The original plea of the defendant alleged in the 7th paragraph that “Said W. J. Norris is charged with 297 oak special boxes by plaintiff, and
On the general grounds of the motion for a new trial, it is enough to say, that, aside from other particulars in which the evidence submitted in behalf of the .defendant is somewhat unsatisfactory, the verdict was necessarily arrived at by the allowance of certain credits claimed by Norris for alleged overcharges, freights, and breakage, by virtue of an understanding or compromise agreement which he testified was entered into between him and “a representative” of the plaintiff company, who came to see him in reference -to his indebtedness to the plaintiff, and canvassed with him matters in dispute; and there was positive proof in behalf of the plaintiff company that “no agent, representative, officer, member or any one else authorized to act for Shores-Mueller ■ Company, ever orally or in any [way] except'by written statement or instrument entered into any contrabt or agreement with W. J. Norris or either of the defendants C. R. Fitzpatrick or W. E. English, and no one was ever authorized to have any oral conversation with said W. J. Norris, C. R. Fitzpatrick, or W. E. English prior to the time that the demand .was made upon them for the payment of the balance due the Shores-Mueller Company.” Norris testified as to a definite agreement between himself and a “representative” of the plaintiff company, whose name he did not remember, as to the amount of claims for breakage, etc:,' to be allowed, but no testimony was presented to show that this “represéntative” (if indeed he was in fact a representative of the plaintiff company) ever presented any credentials to establish his authority to even colled from Norris, and there is an entire absence of testimony showing
It is true that there was testimony from Norris to the effect that he had received a letter from the plaintiff company which had been lost or destroyed, in which they offered, in reference “to the boxes, ... to take them back at certain amount,” which “amount” he had forgotten, but which he testified made due the sum “set out here,” and further, that when he had a sufficient amount of boxes to make a shipment to the plaintiff, the plaintiff declined to take them and he had some of these boxes yet. This testimony, while apparently tending to establish that the alleged agreement to accept the return of certain boxes was made subsequently to the execution of the written contract, and was likewise a written agreement, does not make it appear how many boxes the plaintiff so agreed to accept, or even the price (except by inference) to be paid therefor. While the evidence was not apparently objected to, and was therefore before the jury for what it may have been worth, considering its indefinite character, this fact does not remove the error committed by the trial judge in overruling the demurrer to the answer, which failed to show precisely whether the agreement pleaded touching the return of the boxes was in writing or in parol and made before, at the time of, or after the execution of the contract.
For the reasons suggested above we think the trial judge erred in overruling the demurrers to the answer and the amended answer of the defendants, and in thereafter overruling the motion for a new trial. It is not necessary to pass upon questions raised by the record which are not dealt with above.
Judgment reversed.