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Breach of contract. Before Judge Perryman. McDuffie Superior Court. November 21, 1953.
1. The charge of the court was not erroneous, in that it submitted to the jury an issue raised only by evidence admitted without objection, where, upon objection to the evidence as unsupported by the pleadings, the pleadings could have been amended so as to raise the issue.
2. The court erred in admitting evidence of certain damages which the plaintiff had not sought in his petition to recover, where the evidence was objected to on this ground.
Tankersley brought suit against Reeves, alleging a parol agreement, under which he was to oversee farming operations on Reeves' farm for seven months, beginning on April 1, 1952. Reeves agreed to furnish Tankersley and his family a house, to pay him $100 per month, and to give him one-tenth of the seed cotton produced on the farm that year. Tankersley performed his duties as overseer for seven months, until the crop was harvested, but Reeves refused to furnish the house, paid Tankersley's salary of $100 per month for only five months, and refused to give Tankersley one-tenth of the seed cotton produced. 110 bales of cotton were produced which, including seed, were worth $25,550 or more; Reeves therefore owed Tankersley $2,555. The prayer was for an accounting, for judgment for $3,000 or such other amount as an accounting would show to be due and unpaid, and for further relief.
Reeves denied these allegations and further alleged in his answer: His part of the contract was to pay Tankersley $100 per month and to give him one-tenth of the lint cotton made, over and above all expenses of the family operation. He had a house ready for Tankersley and his family. Tankersley owed him $210 as board for seven months, and the $500 in cash and seven months' board were more than Tankersley was entitled to, for Tankersley had not complied with the contract, but had left the farm and its operation for days at a time.
The verdict was in favor of the plaintiff, for $2,464.78. Reeves' motion for a new trial was denied, and he excepts to that judgment, insisting only upon the assignments of error made in the special grounds of his motion.
1. Error is assigned on a part of the charge submitting to the jury the contentions of the parties as to a bonus of $25 per month to be paid to Tankersley, "if things worked out all right," and "if Reeves made good on the farm," according to the plaintiff, or "if Reeves made good in a sawmill operation," according to the defendant. It is said that a bonus is a gift which cannot be sued for and recovered if not given; and it is also contended that terms providing for a bonus were not pleaded, and that it was not shown that the defendant made good either in farming or in the sawmill business. Both parties submitted evidence to the effect that a bonus of $25 per month was to be paid to Tankersley, upon fulfilment of a condition. This bonus was not a gift, but was in the nature of additional compensation for services rendered. There was evidence that the farm was operated at a profit to Reeves, and thus that he "made good"; he received $11,323.91 for his share of the ginned cotton; his share of expenses for fertilizer and poison was $2,019.52; hail insurance was $93.75; plow tools, etc., $500; and Tankersley's board and salary were $710. No other losses or expenses were shown, and Reeves apparently made $8,000 on the cotton crop of his farm. The evidence pertaining to an agreement to pay Tankersley a bonus was not objected to as unsupported by the pleadings, and was sufficient to authorize the charge complained of. See National Life &c. Co. v. Lain, 51 Ga. App. 58 (3) (179 S. E. 751); Rocker v. DeLoach, 178 Ga. 480 (2) (173 S. E. 709).
Asked whether this was included in the amount sought, plaintiff's counsel replied: "Yes. We will just amend and ask for another $1,000 to bring this in." The court did not exclude the evidence, and the plaintiff did not amend his petition.
The petition did not seek recovery of any amount for Reeves' alleged breach of an agreement to furnish a house to Tankersley and his family, and it was not shown that it was necessary for Tankersley to rent a house in Statesboro, 95 to 100 miles away from the Reeves farm, if Reeves did fail to furnish a house as agreed. As stated in McConnell Bros. v. Slappey, 134 Ga. 95 (4), 102 (67 S. E. 440): "The admission of this evidence was error. A case should be tried on its pleadings, not on a promise to plead. The ruling was based on an intention to plead, which was never carried out. Such a practice should not be allowed."
Since the evidence of damages erroneously admitted could have influenced the verdict prejudicially to the defendant only to the extent of the damages testified to, $315, the judgment overruling the motion for new trial is affirmed on condition that the plaintiff write off $315 from the judgment rendered; otherwise, the judgment must be reversed and the case tried again.
Stevens & Stevens, for plaintiff in error.
Saturday May 23 03:48 EDT

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