37 S.E.2d 425 | Ga. Ct. App. | 1946
1. The verdict on count 1 of the petition was not authorized by the evidence.
2. The verdict on count 2 was authorized by the evidence and was not excessive as a matter of law.
3. The verdict for the plaintiff on count 3 was authorized under the evidence.
4. Alleged errors which will not likely occur on another trial are not passed on.
5. Grounds 12, 13, and 24 being incomplete are not passed on.
6. There is no merit in the other grounds of the motion for new trial.
7. The court did not err in refusing the grant of a nonsuit.
2. The second count sought recovery for the alleged reasonable value of services rendered in the recovery of 1200 shares of Coca-Cola stock of the value of approximately $190,000 and about $6800 cash dividends thereon. In 1934 Mr. Woodruff had deposited 400 shares of Coca-Cola stock with the State Street Trust Company of Boston, hereinafter called the bank, as collateral security for a loan of $50,000. The stock was in four certificates and each was registered in what is called "street names," or the names of four brokers. After the stock was deposited with the bank a stock dividend of 300 percent was declared. The new stock was mailed to the registered holders of the old stock and not to the bank or to Mr. Woodruff. In checking Mr. Woodruff's 1934 income-tax returns, for which work he was separately paid, Mr. Trost concluded that Mr. Woodruff was not receiving all of his Coca-Cola dividends and called the matter to Mr. Woodruff's attention. At Mr. Woodruff's direction Mr. Trost wrote to the bank on May 21, 1936. The bank advised that it had 400 shares of stock but that it had not received the dividend stock. On May 30, 1936, Mr. Trost wrote E. F. Hutton Company asking for information as to the 1200 shares of dividend stock. On June 8, he wrote to the liquidator of J. F. Trounstine Company concerning the 200 shares represented by the certificates registered in the name of Trounstine Company and the stock and cash dividends thereon. On June 8, he wrote William E. Levis about the 100 shares registered in his name. He received a letter dated June 5, 1936, from E. F. Hutton Company, which stated that it held 300 shares of the dividend stock, and told Mr. Trost how to locate Mr. William E. Levis and to communicate with the liquidator of Trounstine Company. In this letter Hutton
Company offered its assistance in locating the stock and suggested that it might expedite matters if the bank was instructed to deliver the 400 shares of pledged stock to it and that it be permitted to collect the dividends. On June 8, Mr. Trost wrote Hutton Company that he had written the bank to send the stock to it. On June 8, Hutton Company wired that the shares had not been received and suggested that they be furnished with a name in which to have the stock registered to protect future dividends. On June 16, Mr. *614
Trost wrote Hutton Company, confirming a telegram and saying that he had communicated with all the holders of the stock and giving the names and addresses of each. On June 19, Hutton
Company wired Mr. Trost for stock powers signed by Mr. Woodruff. On June 19, Mr. Trost transmitted the stock powers with instructions from Mr. Woodruff as to what to do with the stock. On July 12, Mr. Trost wrote Hutton Company for information as to the progress of the matter. On July 13, Hutton Company sent Mr. Woodruff the 1200 shares of dividend stock registered in his name and a check for $6800 representing the dividends. On July 16, Mr. Trost wrote Hutton Company acknowledging receipt of the stock and check and thanking it for their favors pertaining to the matter. The plaintiff in error contends that the verdict for $5000, on count 2 is excessive and so much so as to indicate bias and prejudice. We do not agree with this contention. Assuming for the sake of argument that the stock and dividends there were not lost, but merely misplaced, it is doubtful that under the circumstances the bank would be liable to Mr. Woodruff for the dividends on the stock held by it as collateral, which was not registered in his name. Why could not the bank assume that Mr. Woodruff knew in whose name the stock was registered and that he would be attentive enough to his business to collect the dividends in which the bank had no interest so far as the record shows? One of the brokerage companies in whose name some of the stock was registered was insolvent. There is no evidence as to the standing of the others. The fact that Hutton Company actually recovered the stock would not render Mr. Trost's services less valuable. The principal items of service Mr. Trost rendered were his idea of making the investigation and the result obtained, since it cost nothing but a little stationery and a few stamps. Mr. Trost testified that Mr. Woodruff was reluctant to write the bank about the matter because he did not want to disturb his $50,000 loan. If that is true, and the jury evidently thought it was, Mr. Woodruff did not have much faith in the idea that any stock was missing. We cannot say as a matter of law that the services in recovering the 1200 shares worth $190,000 and collecting $6800 in dividends were not of the reasonable value of $5000. It is contended that the plaintiff was estopped to contend that the reasonable value of the services sued for in count 2 *615
was $5000 for two reasons: (1) that the plaintiff billed Mr. Woodruff for $500 for the identical services and, (2) because in another suit for the value of the same services, Mr. Trost alleged the value of the services to be $500, which other suit was dismissed before the instant action was filed. Neither of these contentions is sound. The bill sent Mr. Woodruff is simply in the nature of an admission, the weight to be attached to which, as against direct testimony, is a jury question. As to the allegation in the former action, it stands on the same footing as stricken pleadings, which present jury questions and which are not admissions in judicio. In the cases cited by the plaintiff in error the pleadings held to estop were never dismissed or stricken from the court records. These cases are Long v.Lawson,
3. It was not error to overrule the motion for new trial as to count 3. Paragraph 3 of count 3 alleged in substance that in the early part of 1937 the defendant employed the plaintiff to prepare certain enumerated individual income-tax returns to be filed with the United States Government and with the State of Georgia. Paragraph 5 of this count alleged that the plaintiff and the defendant agreed upon a compensation of $750 to be paid the plaintiff for these services. There was no demurrer to this count. The allegation as to the agreement for compensation can be construed as having been made at the time of employment or after the completion of the work. There was sufficient evidence to authorize the jury to find that the services were performed under an agreement and that the compensation sued for was afterwards agreed upon.
4. As the errors complained of in grounds 6, 7, 14, 15, 16, 18, 19, 23, 25, 26, and 27 of the amended motion will not likely occur on another trial no ruling is made on them.
5. Grounds 12, 13 and 24 are incomplete and will not be considered.
6. There is no merit in any of the other grounds of the motion as the assignments of error are made therein.
7. "An assignment of error upon the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant's *616
motion for a new trial, to the overruling of which exception is taken, includes the ground that the verdict was contrary to the evidence and without evidence to support it." Wakefield v.Lee,
The court erred in overruling the motion for new trial as to count 1.
The court did not err in overruling the motion for new trial as to counts 2 and 3.
Judgment affirmed in part, and reversed in part. Sutton, P.J., and Parker, J., concur.