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KOHLMEYER et al. v. LIGHTFOOT; and vice versa.
Action on contract. Jenkins Superior Court. Before Judge Usher.
1. The evidence did not demand a finding of a ratification by the defendant, as principal, of the acts of the plaintiffs, as his broker. This court cannot hold as a matter of law that the verdict was not authorized by any evidence and thus the trial judge did not err in denying the plaintiffs' motion for directed verdict and subsequent motion for judgment notwithstanding the verdict.
2. The defendant's contention that credit for a certain sum was not considered by the jury in reaching its verdict is not sustainable by the evidence.
3. (a) Since what the trial judge orally declares is no judgment until it has been put in writing and entered as such, enumerations of error on the trial judge's oral declaration regarding the defendant's motion to set aside present nothing for review.
(b) Where a motion to set aside the grant of a prior summary judgment was filed but there has been no final judgment on such motion, an enumeration of error with regard to the grant of the summary judgment is premature.
Kohlmeyer & Company, a partnership (hereinafter referred to as the plaintiffs), brought suit in Jenkins Superior Court seeking to recover $23,216.50 under a brokerage contract with Barney Lightfoot. The complaint alleged that in October 1965 the defendant Lightfoot, through the plaintiffs as broker, sold short for future delivery nine contracts for the commodity known in the market as "pork belly," the trade name for ham. The market price advanced against the short position of defendant and upon defendant's failure to meet margin calls, the plaintiffs, as broker, purchased for the defendant, as principal, in the open market on December 8, 1965, the pork bellies necessary to fulfill the contractual obligations of defendant. The cost of the pork bellies so purchased for defendant's account exceeded the selling price by $23,216.50. Defendant failed to reimburse plaintiffs upon demand prior to suit.
The defendant filed an answer denying the material allegations of the petition and including two defenses. The first defense alleged that the last margin call was made on November 26, 1965; that, on that date, the defendant instructed Robert A. McCord, a general partner of Kohlmeyer & Company, to close and liquidate his account; that the defendant gave the plaintiffs a check for $5,475 representing the loss at that time, plus replacement of a check returned marked insufficient funds; that the defendant advised the plaintiffs that he would be in a position to clear the check by the first part of December 1965; that the plaintiffs failed to advise the defendant that they had not liquidated his account; that when the defendant saw McCord on December 6, 1965, no demand was made for any additional monies other than a claim for the check of $5,475; that the plaintiffs did not inform the defendant of the failure to liquidate his account; that on December 9, 1965, the plaintiffs demanded of the defendant some $20,000 which was not owed by the defendant and he refused to pay. The second defense alleged the plaintiffs knew of the defendant's financial difficulty and that he had breached the contract on November 23 and 26, 1965; that plaintiffs knew the defendant's checks were no good on November 30, 1965, as well as the date of delivery; that the plaintiffs failed to exercise ordinary care in mitigating the damages by not liquidating the account; that from December 1 to December 8, 1965, they continued to advance the defendant money after the return of the unpaid checks; that regardless of the notice and instructions on November 26, the plaintiffs allowed the account to increase to the present alleged deficit without any notice or demand and by the exercise of ordinary care the plaintiffs could have lessened the defendant's loss by closing the account prior to December 8, 1965.
The plaintiffs filed a motion for summary judgment with respect to the counterclaim in which it was alleged that the cause of action set forth in the petition was one ex contractu and that the counterclaim undertook to set forth a claim ex delicto; that an action ex delicto could not be set off against an ex contractu action except for equitable principles, such as insolvency, or where the plaintiffs were nonresidents; that no equitable principles were involved and that Robert A. McCord, one of the plaintiffs, was a resident of the state. By order dated August 1, 1967, the trial judge granted the plaintiffs' motion for summary judgment as to the counterclaim.
The defendant filed a motion to set aside the August 1, 1967, judgment and in addition offered to amend his counterclaim setting forth facts contained in the original counterclaim but contending that under the Civil Practice Act of 1966 effective September 1967, such action would then lie. The amendment was allowed subject to objection. When the case came on for trial, defendant's motion to set aside the summary judgment order was denied and the court orally sustained the plaintiffs' motion to disallow the amendment.
At the conclusion of the evidence the plaintiffs moved for a directed verdict in the amount of $23,216.50. The motion was denied. The defendant had admitted liability for $4,042 and therefore the court charged the jury that the verdict should be for the plaintiffs in an amount not less than that sum. The jury returned a verdict for $12,235 and judgment was duly entered thereon. The plaintiffs then filed a motion for judgment notwithstanding the verdict in accordance with the motion for directed verdict. The motion was denied and the plaintiffs appealed to this court.
The defendant filed a motion for new trial which was overruled. The defendant now cross appeals and enumerates as error the grant of the motion for summary judgment as to his counterclaim; the denial of his motion to set aside; the disallowance of his amendment to the counterclaim; the overruling of the motion for new trial; and the failure to deduct $3,000 from the verdict.
A synopsis of the evidence pertinent to a decision in this case is as follows. The plaintiffs during the month of October 1965, as broker for the defendant, executed nine short sale contracts at various prices for pork bellies. Under the margin arrangement a cash deposit is required for each short sale contract. If the margin falls below a certain amount per contract, the customer is required to restore it to the original amount. After the short sales and during the month of November the market price of the pork bellies advanced, and as a result margin calls were made by the plaintiffs upon the defendant. The defendant made the necessary payments on these calls, but on November 18, 1965, he gave the plaintiffs a check for $2,500 which was returned unpaid because of insufficient funds, on November 29, 1965, and on November 26, 1965, the defendant gave an additional check in the amount of $5,475 which was also returned for insufficient funds on December 6, 1965. McCord testified that when he received the first check returned for insufficient funds on November 29, 1965, he contacted the bank and ascertained that there were insufficient funds to cover the second check dated November 26, 1965. From an exhibit offered in evidence it appears that these two checks, marked returned for insufficient funds, were entered on the plaintiffs' books on December 1, 1965.
On November 26, 1965, the defendant testified that while in Macon at the plaintiffs' office he instructed McCord to liquidate his account. McCord, on the other hand, testified that in the discussion with the defendant he recommended to the defendant that he liquidate his position and the defendant replied, "I think I will." McCord further testified, "At no time, ever, did Mr. Lightfoot request of me or any one in my office to close out his account." The account remained open through December 7 when the plaintiffs' agents attempted to contact the defendant by phone but were unsuccessful. On December 8, Harry L. Shelton an agent for the plaintiffs went to the defendant's home in Millen and personally contacted him. On the same day during the course of business the plaintiffs closed out the defendant's account. On December 9, McCord had a discussion with the defendant in Millen. McCord testified that the defendant did not make any denial of the indebtedness at that time. The defendant contradicted this and asserted that he did deny and disclaim owing the indebtedness.
During the interval between November 26 and December 8 the plaintiffs prepared a statement of the defendant's account dated November 30, 1965, which showed that the contracts which had been sold short had not been closed out and were in an open position. Although McCord testified that this statement was mailed to the defendant, he did not specify when, and the defendant denied any knowledge that the account was still open prior to December 9, 1965.
1. The appellants, Kohlmeyer & Company, contend that even assuming the defendant instructed McCord to close his account on November 26, 1965; nevertheless, since the defendant, after being informed that such instruction had not been followed, failed to disapprove or repudiate such action, the defendant's actions constituted a ratification as a matter of law. The appellants argue that the only reasonable inference which can be drawn from the facts is that there was a ratification. Thus, there was nothing for the jury to decide and a verdict should be directed for the appellants in the full amount sought.
In considering this question we recognize the well established principles that the appellants arc not entitled to prevail unless the evidence demanded a verdict in their favor and if there is any evidence to the contrary, then the verdict must stand. Reviewing courts have a duty to construe evidence most strongly in favor of a jury verdict, which has been approved by the trial judge. Richardson v. Barrett, 90 Ga. App. 714 (84 SE2d 120). After a verdict has been found, the evidence is to be construed most favorably to the prevailing party since every presumption and inference is in favor of the verdict. McGowan v. Camp, 87 Ga. App. 671, 674 (75 SE2d 350). Where reasonable men might differ as to the inferences to be drawn from the evidence, the matter should be left to the jury. Dixon v. Bristol Savings Bank, 102 Ga. 461, 468 (31 SE 96, 66 ASR 193). Moreover, ordinarily the question of whether a ratification has resulted is for the jury. Wren Mobile Homes v. Midland-Guardian Co., 117 Ga. App. 22, 32 (4) (159 SE2d 734).
In this case there was a clear conflict in the evidence regarding whether the defendant Lightfoot instructed McCord to liquidate his account. The evidence showed that a statement of the defendant's account as of November 30, 1965, was mailed to the defendant; however, McCord in his testimony did not specify when such notice was mailed to the defendant. The notice contained the information that the commodity accounts in question were still open, that is, they had not been closed as of that date. Lightfoot testified that he had no notice in this regard prior to his conversation with McCord on December 9, 1965. Although there was somewhat conflicting testimony as to whether there had been any conversations between the plaintiffs and defendant during the interim, that is, from November 26 to December 9, there was no testimony which would conclusively show the defendant had knowledge prior to that time. As to the day itself, while McCord testified the defendant did not deny owing the indebtedness, the defendant contradicted this.
Under these facts it is apparent that reasonable men might differ as to the inferences to be drawn from the evidence and therefore a jury question was presented. While there was no showing that the defendant actually stated his repudiation of the plaintiffs' failure to close the account, up until the time the answer was filed to the petition in February 1966, the denial on his part of owing the indebtedness claimed by the plaintiff was sufficient to constitute a repudiation.
"Where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence." Code 20-1410. Mimms v. J. L. Betts Co., 9 Ga. App. 718, 720 (2) (72 SE 271). The brokerage contract entered into by the parties provided: "6. You shall have the right, whenever in your discretion you consider necessary for your protection . . . to sell any or all securities, other any of undersigned and to buy any or all commodities, or securities which may be short in any account of the undersigned, and to close out and liquidate any and all outstanding contracts of the undersigned, all without demand for margin or additional margin, notice of sale or purchase, notice or advertisement of any kind whatsoever."
The trial judge did not err in denying the motion for directed verdict and the subsequent motion for judgment notwithstanding the verdict.
2. In his cross appeal (Case 43829) the defendant contends that the jury failed to take into consideration the sum of $3,000 held as a credit to the defendant in a separate account and that this sum should have been deducted from the total sum contained in the verdict. However, this contention is not sustained by the evidence. The plaintiffs' business record, to which reference has been made in the previous division of this opinion, showed that the sum in question was entered as a credit to the defendant's account and was included in the figures showing the amount the defendant owed. Furthermore, McCord positively testified that such amount was credited as against the defendant's liability.
3. In his cross appeal the defendant enumerates as error the grant of the motion for summary judgment as to his counterclaim, the denial of his motion to set aside the summary judgment and the disallowance of his amendment to the counterclaim. The record reveals that on the trial of the case the trial judge orally denied the motion to set aside and orally disallowed the amendment to the counterclaim.
"What the judge orally declares is no judgment until it has been put into writing and entered as such." Construction &c. Union v. Williams Constr. Co., 212 Ga. 691 (1) (95 SE2d 281). Mid-State &c. Corp. v. Wiggins, 217 Ga. 372 (2) (122 SE2d 106) and Seabolt v. Seabolt, 220 Ga. 181 (1) (137 SE2d 642). As was held in Williams v. City of LaGrange, 213 Ga. 241, 242 (98 SE2d 617), "the exception to the announcement of the trial court that the defendant's demurrer to the petition was sustained, which oral declaration was not reduced to writing and entered as the judgment of the court, presents no question for decision by this court." Under authority of these cases we cannot pass upon the enumerations of error concerning the counterclaim and the amendment to the pleadings.
Moreover, since there was a motion to set aside the ruling on the motion for summary judgment and there has been "no judgment," within the meaning of the above cited cases, on such motion to set aside, it is still pending in the court below. While the motion to set aside the summary judgment is still pending, an enumeration of error as to the summary judgment would be premature. See Olivet v. State, 117 Ga. App. 860 (162 SE2d 306); Collins v. Southside Lumber Co., 118 Ga. App. 342 (163 SE2d 755).
Judgment affirmed on main appeal and on cross appeal. Bell, P. J., and Hall, J., concur.
Thomas M. Odom, Florence H. Dendy, for appellee.
Hagler, Harper & Reed, W. M. Fulcher, for appellants.
Friday May 22 18:39 EDT

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