Tice Co. v. Evans , 32 Ga. App. 385 ( 1924 )

Bloodworth, J.

(After stating the foregoing facts.) The record in this case is quite voluminous, and we have for consideration a motion to dismiss the writ of error, a motion to continue, various amendments to the petition, amendments to a number of these amendments, about a half hundred demurrers to the petition and the amendments thereto, and fifty-two grounds of the motion for a new trial. In the headnotes we have covered every question raised in the record, and in addition thereto we will discuss fully headnotes 1, 5, 10, 12, 14, 17, and 21.

A. motion to dismiss the bill of exceptions was made upon the grounds: that (1) the evidence is not briefed as required by law, (2) the defendant in error was not served with a copy of “law brief” as required by tbe rules of court, (3) tbe brief of evidence was not “properly approved and identified by the trial judge.” We will discuss these grounds in their order. (1) Although the evidence is far from brief, it is sufficiently briefed. “Where there has been a substantial compliance with the law as to bringing a brief of evidence to this court such a brief will not be disregarded although it may not be in absolute compliance with the statute.” Crumbley v. Brook, 135 Ga. 723 (2) (70 S. E. 655). Nor is such a brief a sufficient reason for dismissing a writ of error. Fleming v. Roberts, 114 Ga. 634 (40 S. E. 792). Saint Amand v. Lehman, 120 Ga. 253 (3) (47 S. E. 949). (2). “Failure to serve counsel of the opposite party with the brief of counsel for the plaintiff in error, as required by rule 15 of this court (Civil Code of 1910, § 6339),. is not ground for dismissal of the writ of error.” Marietta Fertilizer Co. v. Gary, 22 Ga. App. 604 (3) (96 S. E. 711), and cases cited. (3) The record-shows that the brief of evidence was “approved as correct and ordered filed as a part of the record” by the trial judge. As to grounds 1 and '3 of the motion to dismiss, see also Park’s Arm. Codé, § 6090 (a); Ga. L. 1911) p. 150, sec. 3; Allen v. State, 29 Ga. App. 213 (114 S. E. 583), and citations. The motion to dismiss the bill of exceptions is overruled.

Ground 1 of the second demurrer, demurring to paragraph 2 of the amendment to the petition for the reason that the parol agreement changed the terms of the written contract, is without-merit. Since the contract, with this amendment thereto, is a part of the petition, we will construe it in the light of the other allegations of the petition, in testing it as against a demurrer. The petition shows that the original contract was between plaintiff and the J. T. Tice Company, and that after the execution of the original contract “the said J. T. Tice Company was duly chartered and incorporated, . . and that the said J. T. Tice Company Incorporated absorbed and took over the said J. T. Tice Company and assumed all the said J. T. Tice Company’s liabilities, assets, contracts and business.” Under this allegation the corporation stepped into the shoes of the company, and in legal contemplation the parol agreement (which the petition shows was but a modification of the original contract) was between the same parties as the original contract, and such alteration was permissible under the law, and therefore an allegation to that effect is permissible. “If both parties to a contract change or alter its terms by mutual consent, the contract is still binding on both.” Haigler v. Adams, 5 Ga. App. 641 (63 S. E. 717). “Where a contract is in writing each party has a right to expect the other to do precisely what he promises; but if, in the course of the execution of its terms— the carrying them into practical execution in a continuous business-some of the terms are departed from, and money is paid and received on that departure for some time, then, before the one can recover from the other for failure to pursue the letter of the agreement, he must notify him with clearness of his purpose thenceforth to stand on the original contract.”. Eaves v. Cherokee Iron Co., 73 Ga. 459 (2).

The third demurrer contains three grounds, all directed against paragraph 2 of the amendment filed Séptember 26, 1921, and to the effect that the verbal agreement as to $6.25 commission on repeat orders varies the terms of the written contract. This demurrer is without merit. In Kennesaw Guano Co. v. Miles, 132 Ga. 770 (64 S. E. 1087), Mr. Justice Holden said: “We think that under the facts appearing in the record the court was not required, but was authorized, to find that in the course of the execution of the contract the parties departed from its terms, and paid and received money under such departure, as a result of which the plaintiffs were relieved of the duty to fulfill the guarantee provided for in the original written contract.” See authorities cited on the opinion. Justice Holden said also (p. 771) : “We think that the conduct of the parties, after the expiration of the contract made in writing, was such as to renew such contract as it previously existed, and each of the parties was bound by the terms of such previously existing contract as' modified by the mutual departure therefrom. In .this connection, see Hill v. Goolsby, 41 Ga. 289, 291; Roberson v. Simons, 109 Ga. 360 (34 S. E. 604).” See also Holman v. Ga. R. Co., 67 Ga. 595 (2); Lippincott v. Behre, 122 Ga. 546, 547 (50 S. E. 467). See also ' our discussion of ground 1 of the second demurrer, supra, and cases there cited.

The 4th ground of the motion for a new trial (1st special ground) contends that a new trial should be granted because of certain evidence set out in the affidavit of E. J. Higgenbotham and attached to this ground. This ground shows on its face that this evidence is not newly discovered, but was known to defendants before the call of the case for trial. Indeed it is not really offered as newly discovered evidence.

(a) Neither does this affidavit or anything in this ground show cause for a continuance of the case. A note attached to this ground shows that the “defendant announced ready for trial upon the call of the case, without calling the court’s attention to the absence of E. J. Higgenbotham, or the materiality of this evidence. The case proceeded to trial until the third day, and the plaintiff had announced closed with his evidence when the defendant made a motion to continue the ease on account of the absence of E. J. Higgenbotham, whose absence ivas lenown to the defendant at the time he announced ready for trial.” (Italics ours.)

We will consider together grounds 6, 7, 8, and 9 of the motion for a new trial. In them the verdict is alleged to be “contrary to the pleadings,” “contrary to the law and the evidence,” and it is alleged that the portion of the verdict against the J. T. Tice Company Incorporated “is not supported by any evidence in the ease,” and “is contrary to the sworn testimony of the plaintiff.” It is true that there was a misjoinder of parties. Plaintiff sued both the “company” and the “corporation.” This could be taken advantage of by special demurrer only, and none was filed. Ga. Railroad Co. v. Tice, 124 Ga. 462 (52 S. E. 916, 4 Ann. Cas. 200); Rusk v. Hill, 117 Ga. 722 (3) (45 S. E. 42); Eagan v. Conway, 115 Ga. 130 (6) (41 S. E. 493); Fleming v. Roberts, 114 Ga. 638 (40 S. E. 792). The petition sets out a cause of action against the J. T. Tice Company Incorporated, and therefore the verdict was not “contrary to the pleadings.” Is there any evidence to support this verdict ? The main contention of the plaintiff in error is that J.' T. Tice Company Incorporated did not contract with the plaintiff, did not assume the contracts or liabilities of the J. T. Tice Company, and that there is no evidence of any contractual relation between the plaintiff and the corporation. There is evidence to show that the written contract was between the plaintiff and the company, and was dated September 17, 1919; that the plaintiff made his first trip under the verbally altered agreement in January, 1920; and that he severed his connection with the defendant in January, 1921. Conceding, but not deciding, that the altered agreement was an entirely new contract, there is some slight evidence that it covered a period only from January, 1920, to January, 1921; and if this were believed by the jury, it was not more than a year, and need not, under the statute of frauds, have been in writing. However, we hold that the parol agreement was but a modification of the original written contract between the parties. Both parties litigant agree to the validity of the original written contract. All that part of the original agreement relating to the parties, the 40 per cent, commission to be paid on initial sales, expense necessary to make sales, territory to be covered, orders passing through the company’s office, and compensation on repeat orders, remained unaltered. The only change in the contract alleged is that the plaintiff “was to receive additional compensation of $6.25 per pair racks for repeat orders,” instead of the commission on repeat orders, set out in the original contract. This is but a modification of the original contract. There is evidence to show that it was made by the company just before the company was absorbed by the corporation, and that the corporation acted upon it and received and shipped orders and paid out money under it. As stated in Lippincott v. Behre, supra: “If the contract as originally signed did not bind the defendants, the allegations of the petition are sufficient to show that the same had been adopted by them, and that partial payments thereunder had been made to the plaintiff. '. . .The allegations that the defendants changed some of the terms of that original agreement . . and increased his commissions are also sufficient to show that the defendants recognized and adopted .the contract which had been made by Alfred Lippincott representing Charles Lippincott & Co.” The contract was changed by the plaintiff and the company which originally made it, and “If both parties to 'a contract change or altep its terms by mutual consent, the contract is still binding on both” (Haigler v. Adams, supra), and, of course, binding on the corporation which later assumed it. The petition alleged that the corporation absorbed the company. and assumed ■ the company’s liabilities and contracts. This being true, whatever was due this plaintiff was due by the corporation, either on account of its assuming the liabilities of the company, or on account of the corporation’s dealings with the plaintiff after it came into existence. Without quoting further from the evidence, we content ourselves by saying that it is ample to show a contractual relation between plaintiff and the corporation. The business conducted by the J. T. Tice Company lapsed into the business conducted by the J. T. Tice Company Incorporated. With the knowledge and consent of the corporation, the plaintiff continued to render to it the same service that he had performed, for the company, and the corporation accepted his services with the full knowledge of all the facts and knowing that he expected to carry out the contract with it as it was made with the company.

The 13th ground complains in part of the following charge: “So you look to the evidence and determine if the parties to this written contract, subsequent to its execution, agreed to modify the terms as to the amount to be received by the party of the second part for original orders and also repeat orders, as contended by him.” This charge was not entirely relevant, because there were no pleadings as to a modification of a written contract so far as original orders were concerned. However, there was some evidence, in the absence of pleading, that the written contract was modified so far as original orders were concerned; and there was pleading and evidence that the written contract was modified as to repeat orders. The pleadings set up that the commission to be allowed the plaintiff on repeat orders was changed to $6.25, and there was evidence to this effect, and there was also evidence that at the same time the defendant guaranteed that the 40 per cent, commission, allowed the plaintiff on the original orders as set out in the contract, would amount to $10 or more. In the light of the pleadings and the evidence relative to the modification of the contract, we hold that the error complained of in this ground is not such as to require the grant of a new trial, the charge being in the main relevant and proper.

The jury decided that the plaintiff was entitled to recover, under his contract, and the pleadings and the evidence authorized a finding that the corporation assumed this contract and accepted the services of plaintiff thereunder; and the verdict and judgment against the corporation are legal and binding. See Moss v. Fortson, 99 Ga. 496, 499 (27 S. E. 745); International Power Co. v. Hardy, 118 Ga. 512 (45 S. E. 311).

While this court has “no power to add to a verdict” (Renwick v. LaGrange Bank, 29 Ga. 203 (2)), it is expressly provided by section 5696 of the Civil Code (1910) that where part of a verdict is legal and part illegal, the part which is illegal may be written off, and this court “is clothed with power to direct any order necessary for the proper direction of a cause.” Finley v. Southern Ry. Co., 5 Ga. App. 722 (64 S. E. 312); Civil Code (1910), §§ 6103 (2), 6205.

It is therefore ordered that as to the J. T. Tice Company Incorporated the judgment be affirmed, and as to the J. T. Tice Company it be

Reversed.

Broyles, C. J., and Luke, J., concur.