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Complaint; from Fulton Civil Court-- Judge Etheridge. April 5, 1950.
1. An assignment of error based on a failure of the court to charge a principle of law which reveals that such law, had it been given, would have been more unfavorable to the complaining party than the charge as given, presents no cause for complaint.
2. "A defendant against whom a verdict has been returned can not complain that the verdict is for a less amount than that which the plaintiff was entitled to recover if entitled to recover at all." Johns v. League, Duval & Powell Inc., 202 Ga. 868 (1) (45 S. E. 2d, 211, 174 A. L. R. 757).
H. E. Holcomb, the defendant in error in this court, and herein referred to as the plaintiff, brought suit in the Civil Court of Fulton County against J. L. Mabry, alleging: that the plaintiff had, by partnership agreement and contact with one Lane Hardy, purchased from said Hardy a one-half interest in a certain Lorain dragline of the value of $2500; that his one-half interest in the equipment was known to the defendant, that in March, 1948, the defendant acquired physical possession of the equipment from Hardy and that Hardy agreed that the defendant should sell the equipment because of a debt owing by Hardy to the defendant, and that the defendant should pay the plaintiff his money as half owner of the equipment; that thereafter the defendant sold said equipment for the sum of $4750 but did not pay the plaintiff, and that he is indebted to the petitioner in the amount of $2375, or one-half this sum. The defendant in his answer denied any knowledge of the plaintiff's half interest in the equipment, and attached as an exhibit a copy of a bill of sale to the entire equipment to him signed by Lane Hardy, and pleaded that he was an innocent purchaser for value and without notice. He denied the other material allegations of the petition. On the trial of the case the plaintiff introduced in evidence a partnership agreement between himself and Hardy dated November 26, 1947, containing a recital that the plaintiff was purchasing a half interest in the contested property. This document was unrecorded. The undisputed evidence showed that the entire half interest, in the amount of $2500, had been paid. The plaintiff and Hardy testified that the defendant was aware of this transaction prior to his acquisition of the property. This testimony was corroborated by an attorney who had handled negotiations between the parties, and was denied by the defendant. The evidence further showed that there was on record a promissory note from Hardy to the defendant, but that this note made no mention of a lien on the machine; that the defendant had lent Hardy considerable sums of money; that it was apparently agreed between the two men that Mabry should sell the machine in order to realize the debt owed him by Hardy. The evidence was, in sharp conflict as to whether, in the various negotiations which took place between December and March, the defendant agreed that at the time the machine was sold he would pay to the plaintiff the value of his half interest, or whether or not he knew of such interest. The plaintiff testified that this was understood throughout the negotiations, that it was on this basis that he had consented for Hardy to turn over the machine to the defendant for sale. The defendant introduced a bill of sale for the entire property from Hardy to himself dated March 13, 1948. It was undisputed that the defendant sold the machine soon thereafter for $4500, and that he paid a creditor of Hardy the sum of $300 at Hardy's direction, deducted debts and expenses owing by Hardy to him as set out on an itemized statement accepted by Hardy, and paid to Hardy's attorney a balance of $507, most of which was applied to, the extinguishment of Hardy's debts, but no part of which the plaintiff received. The evidence further showed that the
plaintiff had taken out against Hardy in the Criminal Court of Fulton County a criminal warrant which was later dismissed; that pending this action, and while the plaintiff was in Kentucky, his attorney received from Hardy a promissory note in the sum of $2500 payable to the plaintiff. Hardy made two $50 payments on this note. The plaintiff and his attorney testified that when the plaintiff learned of the note he did not like it, and that thereafter no further sums were paid or received.
The jury returned a verdict for the plaintiff in the amount of $1050. The defendant filed a motion for a new trial on the general grounds which he later amended by adding one special ground, and the overruling of this motion is assigned as error.
(After stating the foregoing facts):
1. The court, after charging the jury under what circumstances a verdict might be returned for the plaintiff, then charged that under these circumstances "the plaintiff Holcomb would be entitled to a judgment against the defendant Mabry in the sum of that portion of the amount obtained by the defendant from such sale . . . less any amount the plaintiff may have received to apply on his interest, whether received from the defendant or Hardy." This charge was authorized by evidence that Hardy had given the plaintiff's attorney a promissory note fur $2500, and that two $50 payments had been made thereon. The defendant in his special ground of the amended motion for a new trial sets out this charge, and then complains of the court's failure to charge in this connection as to the law and effect of the promissory note, contending that it limited the amount to be credited toward the plaintiff's recovery to a credit of only the amount of money paid with no explanation or charge on the effect of the note itself.
This assignment of error does not set out fully and distinctly what error is complained of in that there is no attempt to set out what the "law and effect" of the promissory note would be, and it is not clear what principle of law is alleged to have been omitted from the charge. See, in this connection, Trammell v. Shirley, 38 Ga. App. 710, at page 723 (145 S. E. 486); Hudson v. State, 26 Ga. App. 596 (4) (107 S. E. 94); Rice v. State, 50 Ga. App. 192 (1) (177 S. E. 278); Norris v. State, 184 Ga. App. 397 (1) (191 S. E. 375). However, and without passing upon the validity of this assignment of error, we note that the applicable principle of law involved, as set out in Stokes v. Walker, 21 Ga. App. 630 (2) (94 S. E. 841) is as follows: "Promissory notes are not payment until themselves paid, in the absence of an express agreement to the contrary." There is no evidence here that any part of the note except for $100 was paid, and there is further evidence that the note was received by the plaintiff's attorney in his absence and that the plaintiff, on learning about it, expressed his dissatisfaction therewith. Consequently, there is not only no evidence that the plaintiff received the note as payment of the debt, but there is circumstantial evidence to the effect that he did not do so. This being the case, a failure to charge that the note was not payment was not error, and was an omission favorable to the defendant. This assignment of error is without merit.
2. As appears from the statement of facts herein, there was sufficient competent evidence to warrant a finding by the jury that the defendant knew at the time he received the bill of sale to the equipment from Hardy that Hardy had previously conveyed a half interest in the same equipment to the plaintiff. There is also evidence that in selling the same, the defendant acted pursuant to agreements between Hardy and himself and between the plaintiff and himself, and agreed to use the proceeds for the dual purpose of reimbursing the plaintiff and recouping Hardy's indebtedness to him. The evidence is therefore ample to establish the liability of the defendant. It is concluded, however, that if the defendant is liable, such liability is for the total amount of $2100, based on the plaintiff's testimony that after deducting credits this represented his approximate interest in the machine, and that there is in the record no competent evidence upon which the jury could have based its verdict in the amount of $1050; that such verdict is therefore without evidence to support it and should be reversed on the general grounds.
A thorough discussion of this point is to be found in Johns v. League, Duvall & Powell Inc., 202 Ga. 868 (1) (supra). It was there decided, after a thorough review of the applicable precedents in this State, that it is never a ground for complaint on the part of the defendant that the amount of the verdict is less than that which the plaintiff is entitled to recover. Even though there is no evidence to support a verdict for the amount rendered, there is evidence as to the liability from which the verdict may be sustained, and, this being so, the paucity of the verdict is favorable to the defendant and he cannot complain thereof.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
John H. Hudson, J. Walter LeCraw, contra.
Marvin G. Russell, Turner Paschal, for plaintiff in error.
DECIDED JUNE 28, 1950.
Saturday May 23 06:06 EDT

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