Schofield's Sons Co. v. Mabry

Court of Appeals of Georgia

Schofield's Sons Co. v. Mabry

165 S.E. 890, 45 Ga. App. 695

CourtCourt of Appeals of Georgia

DecidedSeptember 21, 1932

Docket21926

StatusPublished

Cited by1 cases

This text of 165 S.E. 890 (Schofield's Sons Co. v. Mabry) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schofield's Sons Co. v. Mabry, 165 S.E. 890, 45 Ga. App. 695 (Ga. Ct. App. 1932).

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Opinion

Jenkins, P. J.

1. While it is the general rule that where a suit is brought jointly by two plaintiffs upon a contract alleged to have been made with both of them, a recovery is not authorized when the proof shows that the contract was with only one of the plaintiffs, such a variance between the allegata and the probata being fatal (Glausier v. Boston Naval Stores Co., 132 Ga. 549, 64 S. E. 547; Hutcheson v. Mehaffey, 162 Ga. 630, 134 S. E. 756), in the instant case, under the proof submitted, the jury were authorized to find that the two firms of attorneys suing as joint plaintiffs were jointly employed to represent the defendant in the litigation out of which the claim sued on arose, and the verdict in favor of the plaintiffs can not, therefore, be set aside as being unauthorized by law.

[696]*696Decided September 21, 1932.

2. In view of the testimony as to the services rendered by the plaintiff, and the value placed thereon by members of the legal profession testifying in their behalf, it can not be said as a matter of law that the verdict was excessive.

3. The remaining assignments of error are not referred to in the briefs of counsel, and will be treated as abandoned.

Judgment affirmed.

Stephens, J., concurs. Sutton, J., disqualified. Brock, Sparks & Russell, Hall, Grice & Bloch, for plaintiff in error. Mabry, Reaves & Carlton, Martin, Martin, Snow & Gillen, contra.

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Jenkins, P. J.

1. While it is the general rule that where a suit is brought jointly by two plaintiffs upon a contract alleged to have been made with both of them, a recovery is not authorized when the proof shows that the contract was with only one of the plaintiffs, such a variance between the allegata and the probata being fatal (Glausier v. Boston Naval Stores Co., 132 Ga. 549, 64 S. E. 547; Hutcheson v. Mehaffey, 162 Ga. 630, 134 S. E. 756), in the instant case, under the proof submitted, the jury were authorized to find that the two firms of attorneys suing as joint plaintiffs were jointly employed to represent the defendant in the litigation out of which the claim sued on arose, and the verdict in favor of the plaintiffs can not, therefore, be set aside as being unauthorized by law.

[696]*696Decided September 21, 1932.

2. In view of the testimony as to the services rendered by the plaintiff, and the value placed thereon by members of the legal profession testifying in their behalf, it can not be said as a matter of law that the verdict was excessive.

3. The remaining assignments of error are not referred to in the briefs of counsel, and will be treated as abandoned.

Judgment affirmed.

Stephens, J., concurs. Sutton, J., disqualified. Brock, Sparks & Russell, Hall, Grice & Bloch, for plaintiff in error. Mabry, Reaves & Carlton, Martin, Martin, Snow & Gillen, contra.

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165 S.E. 890, 45 Ga. App. 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schofields-sons-co-v-mabry-gactapp-1932.

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