Five Minute Vulcanizer & Auto Supply Co. v. McMillan , 27 Ga. App. 381 ( 1921 )

Stephens, J.

1. In a suit by the plaintiff to recover the purchase-price of goods sold to the defendant in compliance with the terms of a contract between the plaintiff and the defendant,-wherein, among other things, the plaintiff agreed to give to the defendant the exclusive right to handle the plaintiff’s product within certain territory, and where the defendant filed a counter-claim to the plaintiff’s suit, alleging a breach by the plaintiff of its covenant in the contract to give to the defendant exclusive territorial rights as above set out, and praying damages for such breach, where the evidence demanded a finding for the plaintiff for the indebtedness sued on and failed to sustain the defendant’s counter-claim, a direction of a verdict for the plaintiff was proper.

2. Whether or not the legal measure of damages for the alleged breach of the contract by the plaintiff was the expenses which the defendant necessarily incurred in preparing the territory by advertising and sending out salesmen, etc., for the purpose of facilitating his sales therein, as alleged by the defendant in his counter-claim, it nevertheless not appearing that such expenses were necessarily incurred as a result of the plaintiff’s breach of the contract, and the defendant praying only for special damages as above set out, the defendant’s counter-claim was not sustained.

3. In view of the foregoing rulings, the evidence offered by the defendant tending to show that the plaintiff had in its pleadings in a former suit admitted a , breach of the contract sued upon, as set out by the defendant in his counter-claim, which evidence was excluded by' the trial judge, would not, if admitted, have raised any issue of fact for the jury.

4. The verdict- directed for the plaintiff, therefore, being demanded as a matter of law, the judge of the superior court erred in sustaining the defendant’s certiorari and awarding a new trial.

5. It appearing, however, that the appellate division of the municipal court, in affirming the judgment of the trial court, entered a final judgment for the plaintiff in excess of that rendered on the trial and authorized under the law, it is ordered that the judgment of the superior court sustaining the certiorari be reversed, and that the certiorari be overruled and a final judgment entered, writing off the excess and awarding judgment for the plaintiff against the defendant for the amount of the verdict and the judgment entered thereon by the trial judge in the municipal court.

Judgment reversed, with direction.

Jenkins, P. J., and Hill, J., concur.