Roberts v. Allen

122 S.E. 86, 31 Ga. App. 660, 1924 Ga. App. LEXIS 119

• Court: Court of Appeals of Georgia
• Decided: February 25, 1924
• Docket: 14662
• Status: Published

Opinion

Bell, J.

(Alter stating the foregoing facts.) Numerous grounds of the amended motion for a new trial being but amplifications of the general grounds will be considered in connection therewith. One of the contentions is, that the evidence shows that the agreement of February 3 was without consideration because it appeared that the contract between Allen and the State tax-commissioner of January 2, 1920, was superseded by the subsequent contract of December 29th, and that Allen could have had no claim or interest in commissions to be earned in the county of Camden unless he had procured a contract with the county; and that Boberts who had the only contract with the county was thus the only .person having a right in the subject-matter of the agreement of February 3. It is therefore insisted that Allen gave nothing, having nothing to give, as a consideration for this agreement.

Irrespective of the contracts between Allen and the State, the averments in paragraph 9 of the petition, indicative of an intention on the part of the plaintiff to lay as a consideration the fact of his contract of January 2, together with some service performed thereunder, do not exclude the further consideration arising in his alleged promise to cooperate with Boberts in carrying on the work which the latter had begun' under contracts by which Allen was barred from an independent project. “All pleadings must receive a construction in accordance with the natural intendment of the words and language used, and, as a general rule, must be construed most strongly against the pleader (Athens Mfg. Co. v. Rucher, 80 Ga. 291, 4 S. E. 885); but if a petition be subject to two constructions and there be no demurrer thereto, and the case has proceeded to trial and resulted in a verdict, then, in determining whether the case has been proved as laid, that construction will be adopted which is most favorable to the assertion of a cause of action in the plaintiiFs favor. Payton v. Gulf Line Ry. Co., 4 Ga. App. 762 (62 S. E. 469).” Bell v. State Life Ins. Co., 24 Ga. App. 497 (5) (101 S. E. 541).

Nor do we think that the fact that all of the services which contributed to the collection may have been done by Boberts would preclude a recovery by Allen, if the agreement between them was made as alleged. If-the defendant agreed to accept the services of the plain tifi;, he could not thereafter defeat the agreement and deny liability merely because lie elected to proceed alone, if the plaintiff was ready and willing to perform, as might have been inferred from the evidence. The conclusion is not demanded that the taxes were collected before February 3, when the conference at Macon resulted as claimed by the plaintiff in the agreement upon which he relies. Where one is working upon a project and, without knowing that it is near consummation, agrees with another that they will cooperate in concluding it, thus taking the risk of allowing to the other a share of the earnings out of proportion to the service that may be rendered, he cannot escape liability merely because it turns out that the services of the other were not needed.

The plaintiff in error contends that there was no reason impelling him to make the agreement. While the fact that the State tax-commissioner may have suggested cooperation between the parties would not alone afford a consideration, it might offer a motive for entering the agreement upon a slight consideration. Roberts’ appointment was made by this officer, and the contract embodying the appointment provided that it was terminable at any time by either party giving the other party five days’ written, notice. Assuming that the commissioner could not have terminated the contract so as to deprive Roberts of the privilege of proceeding in the county of Camden or in any particular county with which he may have contracted, the refusal of Roberts to concur in the suggestion of the officer appointing him, that the parties hereto for the sake of harmony should cooperate in the particular matter, might have been regarded by Roberts as imperiling his right to proceed in other instances, and he might thus have been induced to enter the agreement with Allen upon terms which he did not regard as advantageous, but not lacking altogether in consideration. Mere inadequacy of consideration alone will not void a contract. Civil Code (1910), §4244. The promise of Allen to help or cooperate in doing the work was a sufficient consideration for the agreement of Roberts to accept and pay for the service. Civil Code (1910), §§4242, 4246; Bing v. Bank of Kingston, 5 Ga. App. 578 (2) (63 S. E. 652).

With reference to a further contention, we think that the agreement as shorn by the evidence of the plaintiff was not void for uncertainty. That is certain which may be made certain. Refer-enee was had to the defendant’s appointment and his contract with the county of Camden. In these were to be found the thing to be done which the plaintiff agreed to cooperate in doing. Whatever was reasonably necessary to be done in execution of the projected undertaking by Eoberts Allen agreed to help in accomplishing. Nor does the agreement appear unilateral.

Was there any material variance between the allegations and the proof? If the plaintiff’s right to a recovery had depended upon his contract of January 2 with the State tax-commissioner, his case would necessarily fail because the contract of December 29, not referred to in the petition but shown by the evidence, superseded the former one. It is distinctly disclosed, however, by the petition, that the plaintiff had never made any contract with the county in pursuance of his contract of January 2 with the State, and that his cause of action is laid in the contract with the defendant of February 3. We think that his testimony tended to support the petition in respect to this agreement, and thus we cannot concur in the contention of the learned counsel for the plaintiff in error, that upon this point there is a material and fatal variance. It is, of coarse, true that a plaintiff must recover upon the cause of action as laid in his petition, and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though another and different cause of action appear from testimony admitted without objection. “No plaintiff can recover upon a cause of action, however just or well, sustained by proof, which is totally distinct and different from that alleged in his declaration, and this is so. although palpably irrelevant evidence may have been received without objection.” Central Railroad & Banking Co. v. Cooper, 95 Ga. 406, 407 (22 S. E. 549); Burdette v. Crawford, 125 Ga. 577 (2) (54 S. E. 677). But “a different rule would apply when evidence admitted without objection could have been rejected as not conforming to the allegations as laid, but in fact related to the cause of action declared on. In such a case our courts have repeatedly held that a party waives his objections to the pleadings by allowing such evidence to go to the jury without objection; the reason for this just rule in such a case evidently being that had objection been made, the party tendering such evidence might have amended his pleadings so as to conform thereto. One of the principal functions of amendments is to conserve this right. Haiman v. Moses, 39 Ga. 798 (3); Savannah, F. & W. Ry. v. Barber, 71 Ga. 644 (2a); Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093).” Napier v. Strong, 19 Ga. App. 401 (2), 406 (91 S. E. 579).

We think that any variance appearing between the allegata and probata was not so wide that it could not have been cured by amendment, that is, that an amendment if offered for that purpose would not have been objectionable as adding a new and distinct cause of action. See Napier Y. Strong, supra, and cases therein cited. This being true, the variance is not cause for a new trial where the evidence was admitted without objection. We have not overlooked the fact that the plaintiff alleged an agreement by which the parties would cooperate in doing certain work, while the evidence would tend to show that there was no cooperation. There is some similarity to a case where one, after contracting to buy goods, countermands the order; in which an action on account for the goods will not lie, but the seller must sue as for a breach of the contract (Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (2), 42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); but we have reached the conclusion that the doctrine of the case last cited and the many others to the same effect is not applicable to the case now under consideration. The principle governing a case like the present one would appear more analagous to that found in the Civil Code (1910), § 3588, in which it is provided: “When the contract is for a year, and the employer discharges the agent before the end of the year, the agent may either sue immediately for any special injury from the breach of the contract, or, treating the contract as rescinded, may sue for the value of the services rendered, or he may wait till the expiration of the year and sue for and recover his entire wages.” If the evidence of the plaintiff be true, he appears to be entitled to the third of the remedies provided by this section. This is the remedy he elected in his suit. He waited until the termination of the period of the engagement, and then sued upon the contract as was his right. See Rogers v. Parham, 8 Ga. 190; Perdue v. Gason, 22 Ga. App. 284 (96 S. E. 16). Certainly he was not, as a matter of law, required to sue as for a breach of the contract because of a failure on the part of the defendant to cooperate or to allow him to help in the execution of the projected undertaking, when the defendant did not notify the plaintiff that he would repudiate the agreement or refuse to be bound by its terms until after the time for performance had passed, and the only breach of which the plaintiff was actually put upon notice, according to his evidence, was the defendant’s refusal to pay.

It is further insisted that, because of the stipulation in the contract between Roberts and the State that it was made on account of the confidence reposed in Roberts, and was not transferable, but was executed with the understanding that the work was to be carried on by Roberts in person, the agreement which Allen would enforce is invalid, unenforceable, “contrary to public policy, and void.” We do not see anything in the agreement which would violate the law. The question is merely whether Roberts, in agreeing with Allen, violated the express and personal stipulations contained in the agreement he had made with the State. “Whatever one may do himself may be done by an agent, except such personal trusts in which special confidence is placed on the skill, discretion, or judgment of the person called in to act; so an agent may not delegate his authority to another, unless specially empowered to do so.”. Civil Code (1910), § 3571. See also Tifton &c. Ry. Co. v. Bedgood, 116 Ga. 945 (43 S. E. 257); Adair v. Smith, 23 Ga. App. 290 (5) (98 S. E. 224). The agreement between Roberts and the State could not have been assigned, but Allen is not relying upon a transfer, and is not proceeding against the State. If he were seeking to do either, of course he should fail. The fact that Roberts himself might have violated his civil agreement with the State, and thus have imperilled his right to be paid, would not necessarily preclude his personal liability to another whom he engaged to cooperate with him in executing the work he had undertaken.

“A contract will be construed as made for a legal, rather than for an illegal purpose; and the more especially when such contract is attacked by a party thereto who has been benefited thereby.” Virginia Bridge Co. v. Crafts, 2 Ga. App. 126 (3) (58 S. E. 322). “‘Courts hold themselves bound to the observance of rules of extreme caution, when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court will be warranted in pronouncing the transaction void on this account. It is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different construction, one consistent with and the other opposed to unquestioned policy.’ Smith v. DuBose, 78 Ga. 415 (3 S. E. 314, 6 Am. St. Rep. 260).” Virginia Bridge Co. v. Crafts, supra. But another and important consideration here is the fact that that tax-commissioner appears to have consented to what was done, and thus to have waived his requirement that the work he expected of Eoberts should be done by him personally. If the State tax-commissioner had denied the right of Eoberts to compensation, because of the agreement with Allen, would it not have been a sufficient reply that the commissioner had given his consent to what had been done, and that Eoberts had acted thereon?

We do not know of any requirement that the contracts (not referring to the act itself of appointing) between the commissioner and the special tax-investigators should be in writing, and his subsequent agreement upon which both the parties acted, if the plaintiff’s testimony is true, would appear to have had the effect of a modification to that extent of his original requirement that the services of Roberts should be personal. Both the plaintiff and the defendant had been appointed as special tax-investigators. The failure of Allen to procure a contract with Camden county did not deprive him of his general official character, but merely affected his right to commissions from the State for work in that county. The tax-commissioner had before him two officers of like authority, and, without affecting the interests of the State, could very well agree to waive the stipulation referred to, in order that one might assist in the work of the other, he allowing them to settle among themselves the mere detail of a division of fees. See Bynum v. Knighton, 137 Ga. 250 (73 S. E. 400, Ann. Cas. 1913A, 903).

This will conclude a consideration of the general grounds of the motion for new trial and of those special grounds which logically fall within the same class. We cannot agree that the verdict should be set aside on the ground that the contract sought to be enforced was illegal or contrary to public policy, as contended, nor can we hold that the verdict was wholly without evidence to support it.

In one of the grounds of the motion for new trial the “movant contends that the alleged contract of February 3, 1931, which forms the basis of this suit, is void and unenforceable because it is a contract for the sale of goods, wares, and merchandise to the amount of $50 or more, and is not in writing, signed by the party to be charged therewith, and is within the statute of frauds, and there are no facts or circumstances shown to take it out of the operation of the statute of frauds.” This question is raised for the first time in the motion for a new trial. “Where the statute of frauds was not pleaded, and there was no demurrer, motion for nonsuit, or objection to testimony, so as to invoke a ruling in the court below on that subject, this court will not grant a new trial on the ground that the verdictds contrary to law because it appears that the contract sought to be enforced should have been in writing. Johnson v. Latimer, 71 Ga. 470 (3).” Bridges v. Williams, 148 Ga. 376 (96 S. E. 499). But irrespective of whether this rule of practice would be applicable where the point is made in a special ground of the motion, the contract relied on does not appear to fall within the particular provision of the statute which the movant would invoke. There is no insistence that any other provision of the statute is applicable.

Two of the grounds of the motion complain respectively of the admission and rejection of evidence. It is insisted that the court erred in allowing in evidence on behalf of the plaintiff a written memorandum drawn from the “tax-books” of Camden county by the chairman of the board of equalizers and furnished to the plaintiff, purporting to show the tax returns of the persons referred to in the petition. The objection was urged that the evidence was hearsay, and that a certified copy of the return would have been the best evidence. The purpose of the evidence apparently was not to establish the correctness of the particular return, but rather to illustrate that the plaintiff had undertaken the investigation. While this fact could not amount to a consideration for the contract sued on, it was not improper to admit the evidence as a part of the history of events leading up to the making of the alleged contract of February 3. “When, in a legal investigation, information, conversations, letters, and replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” Civil Code (1910), § 5763. But even if we have misconceived the purpose and relevancy,of this evidence, it certainly could have done no harm on the grounds urged in the objection. Whether the returns were correct or incorrect was in no way involved. Irrelevant evidence is not necessarily good ground for a new trial. Moreover, it is not assigned that the evidence was not relevant.

The following testimony of the defendant was excluded: “I wired to Pittsburg and got the number or the total value of the stocks and bonds held by the Fidelity Trust & Banking Co., of Pittsburg, Pennsylvania, as agents for the trustees of the Carr negie estate,” the objection thereto being that the telegram was in writing and that the writing was the best evidence. The defendant testified: “I don’t really know where the telegram is now.” This would not seem to be a sufficient foundation for the admission of secondary evidence, but, assuming it to be sufficient, there was no injury in excluding the evidence. It could only have shown the services of Eoberts, about the rendition of which no issue was made.

Three of the grounds of the motion for a new trial except to the refusal of requests to charge. One request was for a charge that “In this suit plaintiff contends that defendant made a verbal agreement to divide the fees earned by defendant from the collection of certain taxes paid by the trustees of the Carnegie estate. Defendant denies having made any such agreement, and further claims that there was no reason impelling hiifi to such agreement, and that there was no consideration for any agreement to divide his fees with plaintiff. If you should believe from the evidence in the case that defendant did not agree to divide his fees with plaintiff, you should find a verdict for the defendant in the case. If you should believe the contention of the plaintiff that defendant did agree to divide his fees with plaintff, but that such agreement was made after defendant had completed the work for which he had been employed, and that defendant had already earned the fees, paid or to be paid him, and that there was no legal consideration for the alleged agreement, then I charge you that such alleged agreement would be in law a mere nudum pactum, revocable at the will of the defendant, and not legally enforceable against him, and I charge you that in such event you should find a verdict for the defendant.” It is assigned that the court declined to give the charge as requested “except in so far as it related to a denial by the defendant that he made the alleged contract.” Assuming that the defendant’s answer raised an issue as to the consideration of the contract relied upon (Doggett v. Simms, 79 Ga. 253 (3), 4 S. E. 909; Martin v. Nichols, 127 Ga. 705, 56 S. E. 995; Citizens Bank of Roswell v. Reese, 145 Ga. 110 (2), 88 S. E. 570; Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369, 83 S. E. 445), that the assignment of error is sufficient, and that the request was in proper form and abstractly correct, we do not think that so much of the request as was refused was pertinent to the issues as made by the evidence. The jury could not have applied it, unless they believed the testimony of Allen with reference to the making of the agreement of February 3 and at the same time should have accepted the testimony of Eoberts that he then and there told Allen that the work had been entirely completed and that there was no occasion or possibility for cooperation.

The respective versions of the parties with respect to what occurred in their conference on February 3 which resulted, as the plaintiff contends, in the making of the contract sued on, as contained in the testimony of each respectively, were so directly opposed that the jury could not reasonably have accepted the one in part and the other in part. The opportunity was not presented, under the issues, for an application of the rule laid down in Sappington v. Bell, 115 Ga. 856 (42 S. E. 233), that “a jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” The testimony of each of the parties was necessarily to be considered as a whole. They were at variance at every material point. The conflict was direct and acute. If they believed that the contract was made as contended by the plaintiff, they could not have believed, as contended on the other hand by the defendant, that the plaintiff was informed that the work had been completed and that there was no reason or consideration for the agreement. We do not think that the proposition as stated in the request would be applicable if the agreement was made in fact, unless it could also be true that the plaintiff was informed of the completion of the work as the defendant contended. If he had performed it but kept it a secret at the time of the alleged agreement, he could hardly take advantage of that fact to assert that the agreement was a nude pact.

A further request was that the court charge as follows: “The law places upon the plaintiff the burden of proving to the jury, by a preponderance of the evidence, his contention that such agreement was in fact made. If all of the evidence adduced upon this trial, taken together, should fail to produce upon your minds a balance of belief, based upon the preponderance of the evidence, that the alleged agreement was in fact made, then it would be you,r duty to find for the defendant, for an even balance of doubt or belief in your minds, based upon an even balance of'the evidence, in your judgment, would not overcome the burden of proof imposed by law upon the plaintiff, and would not authorize a verdict for the plaintiff.” If the weight of the evidence is equally balanced upon an issue as to which the plaintiff has the burden of proof, he would not be entitled to prevail. Assuming that a refusal of a request so to charge would be error, notwithstanding the fact that the court correctly charged section 5731 of the Civil Code, defining preponderance of evidence, we are not prepared to hold that the request would have imparted more light to the jury on the significance of the preponderance of the evidence, or the meaning of burden of proof, than was given by the court in charging the code section. The refusal of this request was not cause for a new trial.

The third request refused was that the court charge as follows: “The requirements of a legal contract in Georgia are not met by a mere understanding on the part of one of the parties that an agreement has been made. To constitute a legal, binding, enforceable contract, it must appear that there has been a mutual meeting of the minds of the contracting parties. In this case the plaintiff contends that he verbally proposed to defendant that defendant divide with plaintiff the fees paid or to be paid to defendant, and that defendant agreed to the proposition. This contention is denied by the defendant. If you should believe from the evidence that plaintiff had a conference with defendant on the subject, and undertook to express to defendant the above-stated proposition, but that the defendant either did not hear or did not understand the proposition and did not agree to the proposition, then I charge you that the defendant would not be liable in this case, even though the plaintiff may have intended and attempted to convey the proposition to defendant, and even though plaintiff in good faith may believe his proposition to have been understood and agreed to by the defendant. In that event, it would be your duty to find for the defendant.” This request was not pertinent. The defendant did not contend that he failed to hear and comprehend everything said to him by Allen in Macon. No such issue was presented by the evidence.

We have most carefully considered every ground of the motion for a new trial. The case is a close one, both upon the law and the facts, but we do not find any sufficient cause in the record for setting aside the verdict.

The validity of the underlying contracts between the parties respectively and the State tax-commissioner is not drawn in question by either party. ' This decision therefore assumes them valid, without any holding in reference thereto. The issue which we conceive to be presented by the record arises upon the claim of the contract of February 3 between the plaintiff and the defendant. We have rendered our decision accordingly.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.