Talbotton Railroad v. Gibson , 106 Ga. 229 ( 1898 )

Fish, J.

1, 2. There was no merit in the demurrer to the ■'plaintiff’s petition. The petition substantially complied with the law requiring the cause of action to be set forth “in orderly .and distinct paragraphs, numbered consecutively.” Wingate & Mell v. Atlanta National Bank, 95 Ga. 1. It was not demurrable because the plaintiff declared upon an account and not upon a special contract. The bill of particulars attached to the petition showed that the account sued on was for several years’ salary due by the defendant corporation to the plaintiff, • for his services as its president, the years in which the services were rendered and the respective amounts due for each year being specified. We know of no reason why a salaried officer • of a corporation, elected and serving from year to year, whose • compensation for each year is fixed by resolution of its board of •directors, may not, if it becomes necessary for him to sue for the recovery of an amount so due him, make out his claim -against the corporation in the form of an account and bring suit upon it as such. It has been repeatedly held by this court that, under the old statutory form which was prescribed by the act •of 1847 for “an action upon an account,” the plaintiff could re- • cover upon proof of a special agreement to pay the amount i-charged in the account.' Johnson v. Quinn, 52 Ga. 485, s. c. 51 Ga. 289; Roberts & Hughey v. Harris, 32 Ga. 542; Schmidt v. Wambacker & Weil, 62 Ga. 321. See Bright v. Central R. R., 88 Ga. 535; Kirkland v. Dryfus, 103 Ga. 128. As the act of 1847 did not undertake to say in what cases “an action upon • an account” could be brought, but simply provided a form which might be used for such an action, these decisions clearly -.show that an action upon an account may be brought for goods ;sold or services rendered, whether there is a special agreement •or not to pay a specified sum for such goods or services.

3. One ground of error alleged in the main bill of exceptions is, that the court below sustained the motion of the plaintiff “ to rule out all of the testimony introduced by the defendant, and to direct a verdict for the plaintiff for $600.00 with interest :from the 1st day of May, 1892.” The record does not disclose the grounds upon which this motion was predicated. Being left to mere conjecture to ascertain what these grounds were, we are at a loss to know upon what theory the court sustained this 'motion. S. W. Thornton, a witness for the defendant, testified, “that he was secretary and treasurer of the Talbotton Railroad Co., that in 1891 he paid the salary of Mr. Gibson as president of the road, and that he paid the salary of Mr. Gibson from May, 1891, to May, 1892, as well as all other salaries that were due him, that he was carrying on a mercantile business in Talbotton, and that Mr. Gibson was elected president of the Talbotton Railroad Co., and that he was elected secretary and treasurer of the said company, and that Mr. Gibson ran an account at his store, and agreed and directed him to collect his salary from the Talbotton Railroad Co., and to credit it to his, Mr. Gibson’s account. And, acting under this agreement and instruction from Mr. Gibson, he collected Mr. Gibson’s salary from the Talbotton Railroad Co. as president, and gave him credit upon his account for it.” This testimony was certainly relevant under the defendant’s plea of payment, which, though defective, was not demurred to; and the court should not have ruled it out. For if the plaintiff did authorize Thornton to collect from the Talbotton Railroad Co. the amount which it was due the plaintiff on account of his salary, and to credit it upon an account held against him by Thornton, and Thornton did ■so, then the indebtedness of the railroad company to the plaintiff was extinguished. This testimony unimpeached and uncontradicted would have sustained the plea of payment. There was a direct conflict, on this point, between the evidence of S. W. Thornton and that of Gibson, the plaintiff, but Thornton’s testimony being admissible, the issue thus raised should have been determined by a jury. ■ Upon proper objection being made thereto, so much of the testimony of the defendant’s witness, "W. J. Thornton, with reference to the payment by the railroad company of the plaintiff’s salary, as appears to be based not on his own personal knowledge, but on his conclusions from an inspection of entries on the books of the company made by a former bookkeeper thereof, whom the witness succeeded, would have been inadmissible. If the motion to rule out the defendant’s testimony, so far as the evidence of this witness was concerned, was "based upon the fact that he appeared to be giving simply liis conclusions arrived at by inspecting these entries on the books, the court would not have erred in excluding from the jury this part of his testimony.

4. There was no error in ruling out “the books of original entry of the Talbotton Railroad Company,” which were offered by the defendant for the purpose of “showing that the salary of the plaintiff had been paid.” Irrespective of the ground of the objection which was made, it is clear that these books were not admissible, because no effort whatever had been made, by preliminary proof, to lay the foundation for their introduction. The Civil Code clearly prescribes the conditions under which, books of account are admissible a,s evidence, and without a substantial compliance with these conditions they are not competent testimony.

5. While ordinarily the two drafts payable to Ragland, and the two orders payable, respectively, to Mamie Gibson and Smith, all of which appeared to have been drawn b)^ the plaintiff on S. W. Thornton, would have been entirely irrelevant in a suit of this kind, we think, in view of the direct conflict in the testimony of S. W. Thornton and that of Gibson, they were admissible. As Thornton testified that Gibson owed him and authorized him to collect his, Gibson’s, salary from the defendant corporation and apply it as a credit on this indebtedness, and Gibson testified that he never gave Thornton any such authority and-that Thornton was indebted to him more than he was to Thornton, we think the true state of the private accounts between them, at the time that Thornton claimed that he was authorized to collect Gibson’s salary, was a circumstance -which the jury might properly consider in weighing the testimony of these two witnesses, and therefore any evidence which tended to show what it was, at that time, was admissible. Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it and to aid the jury in arriving at the truth of the matter, should be admitted. Walker & Chapman v. Mitchell, 41 Ga. 102. The rule in this State is to admit evidence which is of doubtful relevancy. Augusta Factory v. Barnes, 72 Ga. 218; Dalton v. Drake, 75 Ga. 115; S., F. & W. Ry. Co. v. Flannagan, 82 Ga. 580.

6. In the cross-bill of exceptions it is stated, that, at the close of the plaintiff’s testimony, “the defendant moved that the court grant a nonsuit, so far as the items of account for the years 1887 to May, 1891, were concerned, upon the ground that these items were barred by the statute of limitations”; and that the court granted the motion. Error is assigned upon this ruling. We know of no such thing as a partial nonsuit. The effect of a nonsuit is to abruptly terminate the whole case; it puts the entire case out of court, leaving the plaintiff at liberty to bring it again. To “nonsuit” simply a part of the plaintiff’s cause of action would be to divide the case into two parts, dismissing one portion, which the plaintiff could bring again, and allowing the remainder to be tried and a verdict and judgment to be rendered therein. We are aware of no precedent for such a practice as.this. As said by this court i n Swain v. Macon Fire Ins. Co., 102 Ga. 96, “the order passed i n the case at bar should be treated, not as the granting of a nonsuit, but merely as an erroneous ruling.” Although this ] uling of the court was, as a matter of practice,- erroneous, it clearly appeared from the evidence that all the items of the account affected by it were barred by the statute of limitations, wo that if the whole case had been submitted to a jury, under proper instructions relative to the plea of the statute, a verdict .vhich, in effect, found against all of them would have been dej aanded, we should not feel disposed to reverse the court upon this point, for the plaintiff would not have been hurt by the error. But, according to the cross-bill of exceptions, the plaintiff introduced 'the minutes of the board of directors of the defendant corporation, which showed that, at the May meeting of the company in each of the years 1887, 1888, 1889, 1890, and 1891 he was elected president and his salary fixed at $300 per year, except as to the last year, when his salary was fixed at $600. The plaintiff himself testified, “that he was the president of said road for the years beginning in May, 1887, and ending 1st [of] May, 1892,” and “that he had received no part of his salary for any of said years.” The evidence as to when each year’s term of service began and ended appears to have been admitted without objection. As the suit was filed Feb. 18, 1895, if the plaintiff was employed by the defendant, as its president, by the year, it is apparent, under the testimony submitted, that his salary for the year beginning May 1st, 1890, and ending May 1st, 1891, was not barred by the statute of limitations. We therefore sustain this exception. As we have already seen, this is a case which, under the pleadings and the evidence, should have been submitted to a jury for determination ; and, as the statute of limitations is pleaded, at the next trial the court can submit this question to a jury, under proper instructions.

Judgment reversed on both bills of exceptions.

AU.the Justices concurring, except Limpkin, P. J, and Little, J., absent.