Southern Feed Stores v. Sanders , 193 Ga. 884 ( 1942 )

1. An auditor's findings of fact, although made on conflicting evidence, will not be disturbed where such findings are supported by evidence and exceptions thereto have been disapproved by the lower court.

2. A petition for accounting, in which the plaintiff set out facts indicating that something would be found due to him and resorts to equity to preserve the records of the business, which are in possession of the defendant, from removal or destruction pending the accounting, is not subject to dismissal on general demurrer on the ground that it alleges no cause of action, nor is it subject to special demurrer calling for a bill of particulars for the exact amounts.

3. Mutual disregard of an executory contract, so as to change a provision regarding the division of profits between parties, is not accomplished by the intention of only one of the parties thereof to treat the stipulation as no longer binding, without the concurrence of the other party.

4. Where one party to a written contract relating to a store keeps the books and records of transactions between them, and denies access thereto or detailed statements thereof to the opposite party who has requested such information, and such opposite party is thereby unable to discover an improper charge by the party concealing the same, the statute of limitations does not run in favor of the party withholding such facts.

No. 14056. MAY 21, 1942. J. H. Sanders brought his petition against Southern Feed Stores, a corporation, for an equitable accounting and for injunction. He alleged, that under a written contract between the parties he had operated a store for Southern Feed Stores over a period of years, whereby the profits were to be divided between them equally; that Southern Feed Stores had kept the books and records, which he had not been permitted to see or to have a detailed statement of the accounts, for which reason he averred he had no means of setting out the amounts, but his share of the profits had not been paid, one item of which was rents of the store in the sum of $40 per month over a period of ninety months, which Southern Feed Stores had improperly deducted and retained. The plaintiff waived discovery, and prayed for an injunction against the defendant's removing or destroying the records, for an auditor, and for judgment. The defendant demurred to the petition. By amendment the plaintiff sought an accounting, and sued for a profit alleged to have been improperly charged by Southern Feed Stores on goods billed to the store; but this contention was later expressly abandoned.

In its answer and plea Southern Feed Stores set up that the written contract was changed by mutual consent and oral agreement of the parties, so that, in consideration of defendant allowing plaintiff to do some credit business, the rents of the store were to be deducted before a division of the profits; and that instead of being indebted, a named amount was owed by Sanders to Southern Feed Stores.

The case was referred to an auditor, who overruled the defendant's demurrer. After hearing evidence, the auditor made findings of fact and of law. The fifteen numbered findings of fact, in substance, sustained the plaintiff's contentions of the original contract, without change, the operation of the store thereunder, the keeping of records by the defendant, and its failure to give detailed statements although requested, and found against the defendant's expense items claimed against the business and other items claimed against Sanders, finding that Southern Feed Stores had improperly deducted the rents, one half or $1,440 of which was due to Sanders by Southern Feed Stores. The six numbered findings of law, stated briefly, overruled the defendant's demurrers, found that Sanders was an employee entitled to half of the profits without deduction for rents, to interest from annual dates on rents improperly charged, to an accounting; and contained rulings on admissibility of evidence. To the auditor's report the defendant filed exceptions of fact and of law. These were disapproved, and exceptions pendente lite were entered. Thereafter a judgment was taken for principal and interest in favor of the plaintiff against the defendant. The case is here for review. 1. The exceptions of fact attack each and all of the auditor's findings of fact. These findings related to the contract, whether it was changed by mutual consent, the operation of the store thereunder, and finally a determination of whether the rents had been improperly charged and retained by the defendant; all of which sustained the contentions of the plaintiff and found against those of the defendant, resulting in a finding for Sanders of half of the rents. On most of the questions involved there was conflicting evidence, but sufficient evidence was adduced to authorize the auditor to find as he did. Accordingly, the exceptions of fact and assignments of error on the disapproval thereof are without merit. Peyton v.McMillan, 145 Ga. 179 (7), 180 (88 S.E. 937); Cowart v.Singletary, 140 Ga. 435 (2) (79 S.E. 196, 47 L.R.A. (N.S.) 621, Ann. Cas. 1915A, 1116).

2. Exception 1 of the exceptions of law complains of the overruling of the demurrers to the petition. The demurrers were that the allegations were insufficient to constitute a cause of action; that no amounts were set out; and that the allegations were too vague to be the basis of a recovery. If a petition alleges a cause of action good either at law or equity, it will not be dismissed on the ground that it sets forth no cause of action. Smith v. Hancock, 163 Ga. 222, 229 (136 S.E. 52);Smith v. Manning, 155 Ga. 209 (116 S.E. 813); Gibson v.Gibson, 180 Ga. 457, 461 (179 S.E. 354). In the instant case injunction was prayed, and the court granted a restraining order. The plaintiff resorted to equity to preserve the records of the business, which were in the possession of the defendant. In an equitable petition for an accounting it is not required that the plaintiff allege an itemized statement or aver how much is due, provided he alleges facts sufficient to indicate that something is due him. Calbeck v. Herrington, 169 Ga. 869 (152 S.E. 53); Bowman v. Chapman, 179 Ga. 49 (2) (175 S.E. 241);Gould v. Barrow, 117 Ga. 458 (43 S.E. 762); Smith v.Hancock, supra; Luther P. Stephens Investment Co. v. BerrySchools, 188 Ga. 132 (2) (3 S.E.2d 68); Atlanta Trust Co. v. National Bondholders Corporation, 188 Ga. 761, 770 (4 S.E.2d 644). Where it appears from the petition that the defendant was to keep the books, and the plaintiff was refused access to them, no bill of particulars is required. Newcomb v. Wagoner, 35 Ga. App. 29 (132 S.E. 117); Hogan v. Walsh, 122 Ga. 283 (50 S.E. 84). Applying the foregoing rules to the present petition, there was no error in overruling the demurrers, and the exception is without merit.

3. Exceptions of law numbered 2 and 3 complain of the findings that under the contract Sanders' compensation was to consist of one half of the net profits, after deducting expenses, except rents, and that Sanders was entitled to an accounting therefor, the ground of exception being that the original contract was changed by mutual consent, under which the rents should have been deducted. Under certain circumstances there may be a mutual disregard of an executory contract between parties. Code, § 20-116. However, in Bearden Mercantile Co. v. Madison OilCo., 128 Ga. 695 (4), 704 (58 S.E. 200), the court said: "While a distinct stipulation in a contract may be waived by the conduct of the parties, it must appear that it was the intention of the parties to treat such stipulations as no longer binding. The mere fact that one party so intended would not bring about this result. It must appear that it was the mutual intention; that is, the circumstances must be such as, in law, to make practically a new agreement as to the stipulations in the original contract." Whether or not there was such a mutual disregard for the original contract is a question for a jury, or as in this case for the auditor. Mauldin v. Gainey, 15 Ga. App. 353 (7) (83 S.E. 276). The auditor having found against the contentions of the plaintiff in error and the findings of fact, being supported by evidence, there was no error in disapproving the exceptions, and they are without merit.

4. The question is made in the fourth and last exception of law, that a part of the amount found against the Southern Feed Stores was barred by the statute of limitations, such part, as contended, having accrued more than six years before the institution of the suit, and the contract not being one under seal. Although the suit was not filed until October, 1935, it was alleged in the petition and supported by evidence that the store had been operated under the contract from December, 1927, to February, 1935, during which period the books and records had been in the possession of the defendant, it had not apprised the plaintiff of the deductions, nor had he discovered them, despite his inquiry for detailed statements. If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud. Code, § 3-807. In Hoyle v. Jones, 35 Ga. 40 (89 Am. D. 273), it was held: "The concealment of a right, by one whose duty it is to disclose it, prevents the running of the statute of limitations in favor of the party in default. It is a legal fraud." We hold that the ground based on the statute of limitations is without merit. In the same exception it is complained that the finding of interest was vague, indefinite, and uncertain, in that the rate thereof was not stated. In his findings the auditor specified particular amounts of rents on annual periods which had been improperly deducted, and on these amounts from the respective annual dates he allowed interest. The statute fixes the legal rate of interest. Code, § 57-101. We find no merit in this ground of exception, and there was no error in its disapproval by the court.

Judgment affirmed. All the Justices concur.