32 Ga. App. 385 | Ga. Ct. App. | 1924
(After stating the foregoing facts.) The record in this case is quite voluminous, and we have for consideration a motion to dismiss the writ of error, a motion to continue, various amendments to the petition, amendments to a number of these amendments, about a half hundred demurrers to the petition and the amendments thereto, and fifty-two grounds of the motion for a new trial. In the headnotes we have covered every question raised in the record, and in addition thereto we will discuss fully headnotes 1, 5, 10, 12, 14, 17, and 21.
A. motion to dismiss the bill of exceptions was made upon the grounds: that (1) the evidence is not briefed as required by law, (2) the defendant in error was not served with a copy of
Ground 1 of the second demurrer, demurring to paragraph 2 of the amendment to the petition for the reason that the parol agreement changed the terms of the written contract, is without-merit. Since the contract, with this amendment thereto, is a part of the petition, we will construe it in the light of the other allegations of the petition, in testing it as against a demurrer. The petition shows that the original contract was between plaintiff and the J. T. Tice Company, and that after the execution of the original contract “the said J. T. Tice Company was duly chartered and incorporated, . . and that the said J. T. Tice Company Incorporated absorbed and took over the said J. T. Tice Company and assumed all the said J. T. Tice Company’s liabilities, assets, contracts and business.” Under this allegation the corporation stepped into the shoes of the company, and in legal contemplation the parol agreement (which the petition shows was but a modification of the original contract) was between the same parties as the original contract, and such alteration was permissible under
The third demurrer contains three grounds, all directed against paragraph 2 of the amendment filed Séptember 26, 1921, and to the effect that the verbal agreement as to $6.25 commission on repeat orders varies the terms of the written contract. This demurrer is without merit. In Kennesaw Guano Co. v. Miles, 132 Ga. 770 (64 S. E. 1087), Mr. Justice Holden said: “We think that under the facts appearing in the record the court was not required, but was authorized, to find that in the course of the execution of the contract the parties departed from its terms, and paid and received money under such departure, as a result of which the plaintiffs were relieved of the duty to fulfill the guarantee provided for in the original written contract.” See authorities cited on the opinion. Justice Holden said also (p. 771) : “We think that the conduct of the parties, after the expiration of the contract made in writing, was such as to renew such contract as it previously existed, and each of the parties was bound by the terms of such previously existing contract as' modified by the mutual departure therefrom. In .this connection, see Hill v. Goolsby, 41 Ga. 289, 291; Roberson v. Simons, 109 Ga. 360 (34 S. E. 604).” See also Holman v. Ga. R. Co., 67 Ga. 595 (2); Lippincott v. Behre, 122 Ga. 546, 547 (50 S. E. 467). See also ' our discussion of ground 1 of the second demurrer, supra, and cases there cited.
The 4th ground of the motion for a new trial (1st special ground) contends that a new trial should be granted because of certain evidence set out in the affidavit of E. J. Higgenbotham and
(a) Neither does this affidavit or anything in this ground show cause for a continuance of the case. A note attached to this ground shows that the “defendant announced ready for trial upon the call of the case, without calling the court’s attention to the absence of E. J. Higgenbotham, or the materiality of this evidence. The case proceeded to trial until the third day, and the plaintiff had announced closed with his evidence when the defendant made a motion to continue the ease on account of the absence of E. J. Higgenbotham, whose absence ivas lenown to the defendant at the time he announced ready for trial.” (Italics ours.)
We will consider together grounds 6, 7, 8, and 9 of the motion for a new trial. In them the verdict is alleged to be “contrary to the pleadings,” “contrary to the law and the evidence,” and it is alleged that the portion of the verdict against the J. T. Tice Company Incorporated “is not supported by any evidence in the ease,” and “is contrary to the sworn testimony of the plaintiff.” It is true that there was a misjoinder of parties. Plaintiff sued both the “company” and the “corporation.” This could be taken advantage of by special demurrer only, and none was filed. Ga. Railroad Co. v. Tice, 124 Ga. 462 (52 S. E. 916, 4 Ann. Cas. 200); Rusk v. Hill, 117 Ga. 722 (3) (45 S. E. 42); Eagan v. Conway, 115 Ga. 130 (6) (41 S. E. 493); Fleming v. Roberts, 114 Ga. 638 (40 S. E. 792). The petition sets out a cause of action against the J. T. Tice Company Incorporated, and therefore the verdict was not “contrary to the pleadings.” Is there any evidence to support this verdict ? The main contention of the plaintiff in error is that J.' T. Tice Company Incorporated did not contract with the plaintiff, did not assume the contracts or liabilities of the J. T. Tice Company, and that there is no evidence of any contractual relation between the plaintiff and the corporation. There is evidence to show that the written contract was between the plaintiff and the company, and was dated September 17, 1919; that the plaintiff made his first trip under the verbally altered agreement in January, 1920; and that he severed his connection with the defendant in January, 1921. Conceding, but
The 13th ground complains in part of the following charge: “So you look to the evidence and determine if the parties to this written contract, subsequent to its execution, agreed to modify the terms as to the amount to be received by the party of the second part for original orders and also repeat orders, as contended by him.” This charge was not entirely relevant, because there were no pleadings as to a modification of a written contract so far as original orders were concerned. However, there was some evidence, in the absence of pleading, that the written contract was modified so far as original orders were concerned; and there was pleading and evidence that the written contract was modified as to repeat orders. The pleadings set up that the commission to be allowed the plaintiff on repeat orders was changed to $6.25, and there was evidence to this effect, and there was also evidence that at the same time the defendant guaranteed that the 40 per cent, commission, allowed the plaintiff on the original orders as set out in the contract, would amount to $10 or more. In the light of the pleadings and the evidence relative to the modification of the contract, we hold that the error complained of in this ground is not such as to require the grant of a new trial, the charge being in the main relevant and proper.
The jury decided that the plaintiff was entitled to recover, under his contract, and the pleadings and the evidence authorized a finding that the corporation assumed this contract and accepted the services of plaintiff thereunder; and the verdict and judgment against the corporation are legal and binding. See Moss v. Fortson, 99 Ga. 496, 499 (27 S. E. 745); International Power Co. v. Hardy, 118 Ga. 512 (45 S. E. 311).
While this court has “no power to add to a verdict” (Renwick
It is therefore ordered that as to the J. T. Tice Company Incorporated the judgment be affirmed, and as to the J. T. Tice Company it be
Reversed.