Evans v. Collier , 79 Ga. 319 ( 1887 )

Blandford, Justice.

Joseph Evans brought his action upon an account against George W. Collier, for work and labor done from the first of January, 1879, to the first of January, 1884, at $20 per month, $ 1,200. To this action the defendant filed three pleas: (1) the general issue; (2) a plea which he called a plea of payment; and (3) a plea of accord and satisfaction. Upon the trial of the case, the jury found for the defendant on the two first pleas, thereby finding for the plaintiff on the third plea. A motion for a new trial was made by the plaintiff on several grounds.

1. The first special ground of the motion was as follows: “Because the court erred in charging the jury as follows: ‘ If you believe from the evidence that the plaintiff has been fully paid for such services as he is shown to have gendered the defendant, as set up in defendant’s second plea, he cannot recover, nor can his lawyers, in this view of the case, recover anything for their fees.’ The above charge excepted to because too general in this case. It does not except payments when the plaintiff was a minor, nor does it except the payment made after suit was brought, by which his attorneys were deprived of their fees.”

We do not see how this charge is too general. The court charged the jury that if they were satisfied from the evidence that he had been fully paid off for all the services he had rendered, he could not recover. While that is a very general charge, it was sufficient, and left it to the jury to say whether the evidence authorized them to find that the plaintiff had been paid off for his services rendered up to that time.

It may be well to remark here that the second plea is a duplex plea; it is bad for duplicity; and if the plaintiff had specially demurred to it, the court would doubtless have stricken it; but being good in substance and not being demurred to, we will have to treat it as a good plea.

2. The next error complained of is, “ Because the court erred in charging the jury as follows: £If the suit was on a special contract of Evans, made while a minor, with Collier, to pay him so much per month for his services, Evans would be bound in law to include in that one suit all that was due him under that special contract, and the judgment would conclude him until reversed or set aside; that is, it would be conclusive that the judgment covered all that was due him under his infantile contract.’ This charge is excepted to because it estops an infant by a justice’s judgment, where it does not appear the infant had a next friend or counsel to advise him of his rights.”

The plea alleged that there was a certain judgment rendered in favor of the plaintiff against the defendant, in a suit brought in 1883, in a justice’s court, by Evans against Collier, for the sum of $12.50, for services rendered by him at $5 a month. This portion of the charge of the court was applicable to this second plea; and the exception to the charge is based upon the ground that when this judgment was obtained by Evans against Collier in the justice’s court, Evans was an infant, and was not thereby bound. We think he was bound, whether an infant or adult. Whatever may be the law of any other State, we think our code settles that question. Section 3263 is as follows: “ A suit commenced and prosecuted by an infant alone is not void, and although the suit is defective in wanting a guardian or next friend, the defect is amendable before verdict and cured by verdict.” So that whether he was an infant or not, after the judgment was rendered in his favor, that judgment cured any defect as to his not having had a proohein ami or guardian to represent him. The judgment had the same legal effect as if he had been of full age, and is a good judgment until reversed or set aside in some of the modes known to the law. So we think that there is nothing in this exception. The exception seems to admit that the charge is right, except that it does not apply to an infant.

The charge is right, under the decision of this court in the case of The Macon and Augusta Railroad Co. vs. Garrard, 54 Ga. 327. In that case the court said: “ For the purpose of determining this case, it matters not whether the contract between the plaintiff and defendant was entire or severable. When the first suit was brought, the whole demand or debt was due. If so, it was incapable of division for the purpose of bringing separate suits therefor. Section 2939 of the code provides, ‘ if a contract be entire5 but one suit can be maintained for a breach thereof; but if it be severable, or if the breaches occur at successive periods in an entire contract (as where money is paid by instalments), an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.’ ”

So that Evans, having brought an action against Collier in 1883, upon an account for work and labor done prior to that time, and having obtained a judgment against.him, the presumption is that that included all that was due Evans up to the bringing of that suit; and it is a legal presumption which is conclusive. Taking any view of the charge that may be taken, we see no error in it. If this contract which was sued upon in this case was a general indebitatus assumpsit for work and labor done, on a quantum meruit account, so to speak, and it was for all the services the plaintiff had rendered Collier from the first of January, 1879, to the first of January 1884, and he thought proper in 1883 to bring his action against Collier for $12.50, two months and a half services at $5.00 a month, and obtained a judgment, he is concluded by that judgment from saying that Collier owed him anything prior to the bringing of that suit.

The assignments of error are numerous, but it is unnecessary to notice any other portion of the record. There may be some errors committed in the admission of testimony or the rejection of testimony, but they are wholly immaterial in the view we take of this case, and it is unnecessary to notice them.

The judgment is therefore affirmed.