Thompson v. Lyon, 28438.

28438. | Ga. Ct. App. | Nov 29, 1940

In a case where the plaintiff sued for certain alleged loans, and the defendant filed an answer in which he denied liability and sought to recover of the plaintiff the value of certain of the defendant's property used by the plaintiff in his business, and where the jury returned a verdict for the plaintiff in the full amount sued for, it was, under the facts in this case, error prejudicial to the defendant for the court to instruct the jury that the defendant could not recover if the property did not belong to him, and that he could not recover the value of property which belonged to some one else, where there was no dispute as to the defendant's ownership of the property at the time he claimed to have delivered it to the plaintiff, but where it appeared that he had acquired title from the employer with whom he worked immediately before he came to work with the plaintiff. No other error appears.

DECIDED NOVEMBER 29, 1940. REHEARING DENIED DECEMBER 17, 1940. T. J. Lyon, doing business as Lyon-Young Printing Company, brought suit against T. D. Thompson in the civil court of Fulton County, in which he alleged that the defendant was indebted to him $662.30 for money advanced by him in behalf of the defendant. Attached to the petition as an exhibit is an itemized statement of the sums claimed. It appeared from such statement that beginning January 1, 1938, the plaintiff had advanced various sums of money in behalf of the defendant; eleven of such items, consisting of $53.71 each, to "General Motors." The other items are, the "Home Furniture Co.," $76.52; "Collector Internal Revenue," two items, $16.09 and $10.49. These items totalled $749.89. The statement showed under date of January 1, 1938, a "credit one fourth profit for 1937, $87.59," which sum deducted from the total of the claimed advances makes the sum of $662.30. The defendant denied that he was indebted to the plaintiff, and set up by cross-action that the plaintiff was indebted to him $805 as shown by a detailed itemized statement attached to the plea and answer. The defendant alleged that this indebtedness arose by reason of the fact that the plaintiff by agreement with him had used "various forms, programs, catalogues, compositions, make-up, and materials as items in each of the three items attached to defendant's statement," the reasonable market value of which amounted to the sum sued for; that on April 1, 1936, he entered the employ of the plaintiff, and at said time owned all the materials described in the statement; that such materials were used by the plaintiff in his business and for his benefit, and were reasonably worth $805, but that the plaintiff had failed and refused on demand to pay the defendant any portion thereof. The statement attached to the answer contained an itemized statement of the various materials set forth in the answer belonging to the defendant and having been used by the plaintiff, and was divided into three parts designated "1936 account" $240, "1939 account" $450, and also "1939 account" $115. The statement described various items consisting of the articles mentioned in the answer, and stated that they were used by "Lyon-Young Printing Company and being the property of T. D. Thompson."

The case proceeded to trial before a jury. There was evidence tending to support the allegations of the petition. It appeared from the evidence that the plaintiff made a mistake as to the amount alleged to be due him by the defendant in the sum of $21.20, which sum represented a credit which the defendant was entitled to receive, being the value of the metal obtained from certain type, which apparently was a part of the make-up or composition that the defendant claimed belonged to him and was used by the plaintiff. The plaintiff testified that this property belonged to him but that the defendant was entitled to the metal of 53 pages of a catalogue for "Knight Brothers;" that the defendant should be given credit for this sum, and that he was only seeking to recover the difference from the defendant which amounted to $641.10. It appeared from the evidence that the plaintiff was engaged in doing a general commercial printing business as the "Lyon-Young Printing Company," and that the defendant entered his service on April 1, 1936, and remained with him until February 1, 1939. The plaintiff also testified in support of the various sums claimed to have been advanced by him in behalf of the defendant. On cross-examination he testified that when the defendant entered his employment he brought with him certain customers and certain business "as he had control of publications, price lists, and things of that kind, and that he brought that business and put that much work into the Lyon-Young Printing Company's plant, and was employed for a salary of $75 per week, which salary he drew from April 1, 1936, until February 1, 1939;" that he and the defendant entered into a written contract which provided that an addition to the weekly salary to be paid the defendant, the defendant would be entitled to one fourth of the profits of the plaintiff's business. The plaintiff further testified that the defendant had been settled with for all profits under the contract of employment with the exception of $87.59, which represented the unused portion of the balance of profits after deducting what had been previously drawn by the defendant; that Thompson did not tell him on January 1, 1938, that because of the fact that his part of the proceeds was so small he would not continue to work under a one fourth of the profits basis, and that Thompson did not at that time enter into an agreement with him to stay on under the promise that every subsequent automobile note would be paid by the plaintiff as part of Thompson's compensation for remaining with the business; that although these notes were paid, that such sums were advanced to the defendant to pay these notes and were to be taken from the defendant's profits, and if there were not any profits the agreement was that the defendant would pay such sums back, but that this was not in writing, that at the time the defendant left his employ he did not ask the plaintiff to account for the materials and articles which he brought with him to the company; that he never asked at any time therefor, and never made a claim or suggestion that "a dime be paid for what he brought there; that the things he brought to the company were used in the company's business and Thompson got a part of the profits the same as did the witness;" that when the defendant went to work with the plaintiff, he did not (as claimed by the defendant) tell him he was bringing such material, but after the defendant brought such material and articles to the printing plant the defendant, as it appears quoted in the brief of the evidence, "made statements that all were printing from his [the defendant's] plant and were not fit for anything except scrap, and that he would give them to the company; that the covers for the Southern Banker were used and if Thompson had not brought those covers, he [the plaintiff] would have had to get others, and that he therefore got the benefit of the value of them." The plaintiff further testified that after the demand was made on the defendant for the sums sued for the defendant thereupon sent "the original of a certain statement which the witness had never heard of until he made a demand on him for $662." Upon being asked as to one of the items contained in the statement attached to the defendant's plea and answer, to wit, the $240 claim designated "1936 account," the plaintiff stated that if the defendant had not brought the materials comprising such item with him at the time he entered the plaintiff's employ that the plaintiff would have had to buy that material; that he would not say such material was worth $240, but that "surmising it cost $240, Thompson brought it with him; the company saved that much although a bill was never made for it or a demand until after Thompson left his employ."

The defendant introduced evidence tending to support the allegations of his answer, and of the cross-action. He testified that he was connected with the printing company of the plaintiff under a written contract by which he was to be paid a salary of $75 a week and receive 25 per cent. of the profits of the business; that this contract continued in effect until he left the employ of the plaintiff, and that the only change made in it was at the end of the year 1937; that he received from the plaintiff the weekly salary for each week that he worked until he quit; that he received about $1200 in profits for the first year of his contract with the plaintiff, but that after the first year his profits amounted to only $87, according to the statement made to him by the plaintiff. The defendant further testified: "Then I saw there wasn't any hope for me to make more than $75 per week salary, and T. J. Lyon asked me how many notes I had on my car and I told him for the balance of the year; then T. J. Lyon said that `I will let the company take care of them and charge that against the company's profits,' and nothing was said about charging this to my individual account. If there had been I could not have done that, and I worked the year 1938 under that agreement." The defendant then testified that the plaintiff paid his automobile contract notes and certain other items for him for which the plaintiff brought suit; that "it is my contention that they now owe me $805, and I owe them $71.49, which would leave a total due me of $733.51;" that he brought various printing material, catalogue set ups etc., with him when he entered the plaintiff's business; that such material belonged to him, having been the property of the Alliance Printing Company with which the defendant was formerly associated, which company went out of business, and such material was delivered to the defendant; that the plaintiff used such catalogues and materials in the business and obtained the benefit thereof; that certain of such material that was not used was in the plaintiff's possession, and after the defendant left the plaintiff's business the plaintiff refused to turn such property over to him; and that he had told the plaintiff such materials could be used in the business, but that the plaintiff was to pay him therefor although no price was agreed on, the defendant stating to the plaintiff that the printing company could pay him therefor when it got in better shape.

The jury returned a verdict for the plaintiff, finding that the defendant was due the plaintiff $641.20. To the judgment denying a new trial the defendant excepted. 1. The court charged the jury as to the contentions of the defendant as alleged in his cross-action as follows: "That the plaintiff is justly and truly indebted to the defendant in the sum of $805, as shown by the detailed itemized statement attached to the defendant's answer and marked defendant's exhibit A, that the amount has been credited with $71.49 which leaves a total of $733.51." The defendant contends that this charge was error because it failed to instruct the jury as to the items comprising the $71.49 credit, which the defendant conceded should be allowed the plaintiff against the sums sued for by him in the cross-action, "and left the jury in ignorance as to what items had been credited by the defendant on his cross-action." No error as against the defendant appears from this ground. The court was instructing the jury as to the contentions of the defendant in the cross-action. The jury found for the plaintiff and therefore against the defendant on the cross-action. It does not appear how an itemization of the sum which the court stated was to be allowed as a credit against what the defendant claimed the plaintiff was due him in the cross-action, and which the defendant conceded should be allowed as a credit to the plaintiff on the sums claimed in the cross-action, would have benefited the defendant to the extent of influencing the jury to find in his favor (on the cross-action), or how such failure to charge tended to prejudice the jury to find against the defendant thereon. The jury, by their verdict, found that the plaintiff did not owe the defendant anything on the cross-action, and also that the defendant was due the plaintiff the sums sued for.

2. The defendant assigns error on the following charge of the court: "Likewise, it is not necessary for the defendant to file any additional pleadings in the case as to those contentions, merely filing an answer and serving same on the plaintiff in the case is sufficient to form an issue in the case for you to try." The defendant "contends that said charge was error because the effect thereof was to confuse the jury, and further because said charge is not adaptable to either the pleadings or the evidence in said case." This assignment of error is without merit. It does not appear how the defendant was prejudiced by the charge quoted. The court was instructing the jury that upon the defendant's admitting a paragraph of the plaintiff's petition it was unnecessary for the plaintiff to offer any proof as to the matter contained in such admitted paragraph, and the court immediately followed these instructions with the excerpt quoted above.

3. The court charged the jury: "An oral agreement between the parties is just as binding as if it had been in writing, if you find such in this case." The defendant contends that this charge was error because the court did not then or at any other time during the charge to the jury submit to the jury the contention of the defendant with reference to the change, which he contends the evidence introduced by him shows was made, in the original written contract between the defendant and the plaintiff, and that without being specifically charged as to such contention of the defendant the jury was not properly instructed. The above excerpt was not error for any of the reasons assigned.

4. The defendant contends that the court erred in charging the jury as follows: "With reference to the agreement between the parties, as to the monies advanced here, you will be the exclusive judges of whether or not those are proper items of recovery. If it was not money advanced by the plaintiff in the case, then it would not be a proper item of recovery, if that was their understanding at the time. If it was a loan advanced to the defendant, and that was their understanding, then it would be a proper item of recovery, if you find that to be the case." The defendant assigns error on this excerpt as being confusing and misleading, and as not being sufficiently explicit for the jury to arrive at a proper conclusion, for the reason that the court failed to include the question whether or not any alleged advances were against commissions and not just money advanced as a loan. The defendant contends that the court should have charged on the question of voluntary payment, and that it was error not to include in the charge the law with reference to the payments being voluntarily made. The charge was not error for any of the reasons assigned. No question as to voluntary payments was raised in the pleadings. There was no request to charge on the question of voluntary payments. The plaintiff contended that the sums sued for were advanced to the defendant as loans. The defendant denied this, claiming that under a subsequent agreement these "advancements" were not to be repaid by him, and that he was not indebted therefor. The portion of the charge that if the "advancements" were not "money advanced" by the plaintiff then the advancements would not be a proper item of recovery, if this was the understanding between the parties, was a submission to the jury of the contention of the defendant that he did not owe the plaintiff for the money advanced. The charge therefore was not error on any of the grounds urged.

5. The court charged the jury: "Now with reference to the defendant's contentions, . . if you find that the property in question was property of the defendant T. D. Thompson then you would have to go further and say what the reasonable value of that property was, that property that was his, and, in the agreement, that he would get back what belonged to him. Then it would be up to you to say from the evidence given here, what the value of that property was. And if he is entitled to recover, whatever amount you may determine from the evidence he could recover for that amount. But if the property in question was not his, he could not recover for property belonging to any one else, or that he did not have proper title to. In any event, he would have to own it himself." There is no evidence that the property referred to by the court and which the defendant contends was used by the plaintiff and for which he claims he was to be paid, and for which he sues in the cross-action, belonged to any one other than the defendant at the time it was brought by him to the plaintiff's business. A recovery for the reasonable value thereof was sought by the defendant in the cross-action. The jury found for the plaintiff for the full amount sued for, without allowing the defendant any credit for the sum set out in the cross-action. Under this charge the jury were instructed that if such property did not belong to the defendant, or if he did not have proper title thereto, he could not recover as against the plaintiff the reasonable value thereof. The submission of this as an issue was not authorized by the evidence. While the evidence demanded a finding that the defendant had acquired all the right, title, and interest of the Alliance Printing Company in the property, and that it belonged to him when he brought it to the Lyon-Young Printing Company, the charge of the court, in submitting to the jury as an issue of fact, which it did, whether the defendant had ever owned the property, was equivalent to a statement or instruction to the jury that there was evidence from which the jury could infer that the defendant did not own the property. There was no such evidence. Under this charge the jury might have inferred that the property did not belong to the defendant, and so found in finding a verdict against the defendant's cross-action. The charge therefore was error prejudicial to the defendant. If there had been no evidence whatsoever that the property had ever belonged to the Alliance Printing Company, the charge might not have been error. Cases which hold that it is harmless to the complaining party for the court to submit to the jury as an issue matter about which there is no dispute in the evidence, are based on the theory that since the evidence is conclusive on the question the jury could not have drawn a contrary conclusion. Where, however, as in the case now before the court, the evidence was conclusive that the title to the property belonged to the defendant, but where there was evidence that the property had belonged to the Alliance Printing Company before that time, the jury might have inferred that this evidence was of some probative value from which the jury might find that the property belonged to the Alliance Printing Company and did not belong to the defendant. There was no evidence in support of the charge, and being prejudicial to the defendant it was error demanding the grant of a new trial.

6. The court did not err "in failing to charge the jury with reference to the contract of employment between plaintiff and defendant, wherein said contract provided in addition to a regular weekly salary, a division of the profits, nevertheless, said contract was silent as to any monies advanced against commissions, and being silent, there was no justification for charging any advances or overdrafts against defendant's account, and movant contends the court erred in not charging this principle of law to the jury, as the failure to do so created in the minds of the jury the thought that such advances were recoverable." This ground does not show any error. The court gave in charge to the jury the contentions of the parties as made by the pleadings, and if the defendant desired a more detailed instruction relative to contentions made by him under the evidence a timely and proper request therefor should have been made.

7. A verdict was not demanded for the plaintiff as to the alleged advances made to the defendant. The error relative to the subject-matter of the defendant's cross-action requires the grant of a new trial.

Judgment reversed. Sutton and Felton, JJ., concur.