Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494

Tyler Cotton Press Co. v. Chevalier

56 Ga. 494 | Ga. | 1876

Jackson, Judge.

1. This was a suit brought by Chevalier against the Cotton Press Company for the breach of a contract of hire. The first question made by the record is in respect to the jurisdiction of the court. The suit was to the city court; its jurisdiction is limited to $1,000 00, and the proof of the sum due the plaintiff under the contract was over that sum. The declaration contained two counts; one for damages for turning the plaintiff off, and the other on the contract. The jury found $1,000 00. The law will presume that the verdict was upon the count which sustains the jurisdiction, if there be one. We think that the count for damages, the damages being laid at $1,000 00, does sustain the jurisdiction. A plaintiff may lay his damage at what he pleases and can recover no more. So far as the damage count goes, the verdict is, we think, good; and when the motion was made to dismiss, on the facts showing a larger amount of damage, it was properly overruled.

2. If the ease had rested only on the second count, which set out the contract and was based upon it, we should have sustained the motion to dismiss; for, under the law, a plaintiff cannot reduce his demand resting on contract so as to confer jurisdiction: Code, section 3460; R. M. Charlton R., 298; 2 Bay., 180; 2 McCord, 280. The motion being made when the proof showed the amount over the jurisdiction, was in time as to that count: 13 Vermont, 175; but if one count be good, that is, in this case, if the damage count be sufficient to sustain the jurisdiction, the others will be held to be merely auxiliary, and the jurisdiction will be maintained: 6 Vermont, 91; 14 Ibid., 296. We, therefore, hold that the city court had jurisdiction on the first count, and the case should have been retained on that count.

3. To the record from the city court, in which the facts in *496connection with the exceptions to the ruling of the court appeared, the company excepted as insufficient and proposed to traverse the return. The court dismissed the exceptions and the traverse, and this is also assigned as error. Whether the ruling of the superior court on this point be erroneous or not, turns on the question whether the city court of Savannah has a system in respect to writs of certiorari perculiar to itself, or whether that court is embraced in the general law of certiorari, under the head of inferior judicatories. We think its system, as followed in this case, peculiar. In that court the party excepting may put his exceptions in writing, and at the same time furnish in writing to the court, an abstract of the facts sufficient to elucidate each exception he takes, and the exceptions and facts, supervised and approved by the city court, go up to the superior court as matter of record. There can be no traverse or exception to such a proceeding. The city court must correct its own records, and the excepting party must complain there.

4. The presumption is that that court will do right; if not, mandamus will compel the court to do any ministerial act which it neglects and refuses to do, by which any party or suitor is damaged. We understand that the practice of the city court accords with this construction of the law, "and we can put no other upon the Code, section 4958. We will not say that a party to a suit in the city court may not have proceeded under the general law of certiorari, and that in such a case the exception and traverse to the return might not have been allowed. We leave that question open; though the proceeding, as in this case, is the safer and surer mode.

5, 6. Another assignment of error is upon the charge of the city court, to the effect that thepayment to plaintiff by defendant, of the wages due when he was discharged, on condition that he would receive it as entire satisfaction of all claims lie held and would drop his suit, was nudum pactum, if the jury believed he was wrongfully discharged. We think that this charge was wrong. The whole claim of the plaintiff was in dispute. He was hired on the express condition that he *497obeyed orders. The question was did he obey orders. The proof was conflicting. If he did not obey he failed to comply with his contract, and could recover nothing. The consideration of his employment had failed. The money due up to the time of his discharge, or that he claimed to be due then, was as much in dispute as any other claim of his for his wrongful discharge. If he agreed to give up his whole claim if the company would pay him that part, he is bound by the agreement, and the city court should have so charged, and the superior court should have sustained the certiorari and granted a new trial on this ground. The Code settles the question. Section 2880 enacts that the accord and satisfaction must be of some benefit to the creditor to bind him, and that the securing a doubtful claim is such a benefit. Section 2881 declares that an agreement for less than the amount of the debt cannot be pleaded as accord and satisfaction “ unless it be actually executed by payment of the money,” etc. Here the money was paid. See, also, 3 Kelly, 310.

In respect to the right of the plaintiff to sue, we adhere to the rule in 8 Georgia, 191, Rogers vs. Parham, that a party, wrongfully discharged from employment may sue for any special injury sustained immediately, or may wait till his term of service would have expired, and sue on the contract for all his wages, or may treat the contract as rescinded, and sue at once for work and labor done on a quantum meruit. We see no error in the city court in allowing the verdict to be corrected by the jury before their discharge. The legislature has now conferred the right on the city court of Savannah to grant new trials. It is not necessary, therefore, to pass upon the question of its right before that act. The remedy by certiorari was good in any view we might take of that subject. On the whole case, we hold that the court should have sustained the certiorari and granted a new trial on the ground that the city court erred in' its charge that the agreement to give up the balance of his, claim by Chevalier if the company, would pay him the sum of $62 50, was nudum pactum, if Chevalier was wrongfully discharged, it being the opinion of *498this court that if such a contract was made, and the money paid, it was executed, and would bind the plaintiff.

Judgment reversed.