Edwards v. Hale , 129 Ga. 302 ( 1907 )

Cobb, P. J.

(After stating the facts.) The controlling issue was partnership or no partnership. The evidence upon this subject was conflicting. It is conceded by' counsel for plaintiff, in ■error, in his brief, that the evidence was sufficient to authorize a finding either way. It is therefore only necessary to determine whether any error of law has been committed which would authorize a reversal of the judgment. Error ,is assigned upon the following charge of the court: “If there be no agreement as to the time of the continuance, the partnership is at will, and may be dissolved at any time by any partner giving the other three months notice; and if this be the truth of the case, — if the defendant dissolved it without this' notice, then the plaintiff can. recover what the profits would amount to for' said three months, and no more; and the burden is upon the plaintiff to show what these profits would amount to.” Error is assigned upon this charge, for the reason that it limited the plaintiff’s recovery to the profits that might have been made during the three months following the wrongful dissolution of the partnership, and placed the burden upon the plaintiff of .showing what his damages would be. As will be seen from the statement of facts, the plaintiff distinctly alleges that his damages were the loss of profits during the three months; and hence there was no error in the judge limiting the plaintiff’s recovery in the manner in which it had been limited in his petition. Neither was there any error in-instructing the jury that the burden was upon the plaintiff to prove his damages. He must furnish some basis upon which the jury could estimate the damages resulting to him from the breach of the partnership agreement. It may be that under the petition the plaintiff would have been entitled to recover nominal damages for the breach of the contract, even though there was no evidence as to any actual damages sustained; but it is well settled that in an action upon a contract a new trial will not be ordered merely for •the purpose of allowing a plaintiff to recover nominal damages. Roberts v. Glass, 112 Ga. 458 (37 S. E. 704); Bloom v. Americus Grocery Co., 116 Ga. 784 (43 S. E. 54).

Error is also assigned upon the- following charge: “In order to constitute a partnership by joint interest in the profits and losses, the partners must share in all losses sustained by the partnership. The word Toss’ in this section [§2629] means something more than the mere failure to realize profits.” The error assigned upon this charge is that it precludes the jury from finding for tire plaintiff profits which had been added to the business, and*, that the court did not define the term “losses.” So far as the latter assignment of error is concerned, it is sufficient to say that if any definition of this term used in the code section had been desired, it should have been the subject of a proper written request. The first criticism is not well taken, for the reason that the court, in the charge referred to, was not undertaking to determine how an accounting should be had to determine the profits and losses of the business, but simply defining what was a partnership under the law.

The only other assignment of error is an objection to the testimony of a certain witness as to the statement of the father of the defendant in the -absence of both the plaintiff and defendant. The judge, in. a note to the motion for a new trial, says that this evidence was admitted for the purposes of impeachment. Even if this evidence was improperly admitted, for the reason that it. sought to impeach the witness upon a matter which was immaterial, the error was, under all the circumstances, not of such grave nature as to require a reversal of the judgment. '

Judgment affirmed.

All the Justices.concur.