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Action on account. Before Judge Etheridge. Fulton Civil Court. June 9, 1955.
1. The plea of set-off stated a cause of action, and the trial court did not err in overruling the general demurer thereto.
2. It is not the policy of the law to require a party to an action to litigate when he is willing to surrender to his adversary more than the latter is entitled to under the undisputed evidence in the case. Since the evidence here demanded a finding that the verdict in favor of the plaintiff and the amount voluntarily written off by the latter, left a judgment against the defendant slightly less than his liability, the grant of a new trial on the sole ground that the plaintiff bad no right to remit to the defendant the amount of $20 so written off, was error.
Plymouth Record Corporation filed an action on account against Books, Inc., in the Civil Court of Fulton County in the amount of $3,571.20 for phonograph records purchased and delivered to it. The defendant answered denying the debt and setting up in the cross action as amended that Harold Karp and Sam Feldman, president and manager of the defendant corporation, entered into an agreement with Thomas Brusk on behalf of plaintiff, both orally and in writing, a copy of which agreement is attached to the amendment, under the terms of which defendant received plaintiff's exclusive sales agency in the Atlanta area for Plymouth records. The alleged consideration of this agreement was that defendant should pay to plaintiff the sum of $1,702.02 and to its subsidiary the sum of $782.06, which represented the debts of another corporation for which defendant had no legal liability, and that in such agreement plaintiff also agreed to reimburse defendant in amounts not to exceed $350 each for three advertisements of the product to be run in Atlanta newspapers. Defendant alleged that plaintiff breached its agreement by refusing to reimburse for advertising costs and further breached its agreement by selling its products to J. M. High Company and permitting that company to advertise plaintiff's records while defendant's contract was in effect, causing it to sustain a loss of $750 in connection with its sale of plaintiff's records.
General demurrers to the defendant's cross-action were overruled, and this judgment was assigned as error. Upon the trial of the case, issues were attempted to be made as to whether plaintiff owed defendant for all the advertising, for half of it, or for none of it; also whether defendant was entitled to credit for the sums of $1,702.02 and $782.06 because of failure of consideration of the contract, or whether plaintiff was entitled to recover the full sum of $3,571.20 which defendant admitted on cross-examination would be due it if no set-off were allowed. This represented verdicts in six possible amounts, and the court charged the jury the various amounts and that a verdict should be brought in for the plaintiff in one of such sums. The possible verdict of $3,178.20 would have represented the amount of plaintiff's account less $393 and advertising. The other possible verdicts as charged by the court were $3,571.20; $2,877.08; $3,374.70; $1,087.12; or $1,283.62. The jury returned a verdict of $3,198.20, and judgment was entered accordingly. Thereafter plaintiff petitioned that $20 be written off as a clerical error and the verdict reduced to $3,178.20, whereupon the court revoked the first judgment and entered judgment in accordance with the reduced amount. Defendant made its motion for a new trial which was later amended by adding 4 special grounds. The court granted the motion, stating that, while he was morally certain that the verdict returned by the jury was due to a clerical or typographical error in the sum of $20, he did not believe the verdict could be reformed by the plaintiff's writing off this sum, and that, under these circumstances, he felt obliged to grant the new trial. This judgment is also assigned as error.
1. Since the defendant's plea of set-off specifically alleged that the exclusive sales-agency agreement was in full force and effect on March 17, the date of the alleged breach by plaintiff in selling its products to J. M. High Company, and further alleged that plaintiff breached its agreement by selling records to such competitor on that day, the plea was not subject to the general demurrer interposed. The written contract pleaded by the defendant, in the form of a letter to it dated January 15, 1954, granted a 60 day "exclusivity" with a statement that it "may be renewed at the expiration date, the same as our arrangements with department stores." The petition also alleges that March 17 was "during the effective period of this exclusive sales contract" and that defendant was granted exclusive sales rights "between the dates of January 15 and May 15, 1954." The allegations are accordingly sufficient to state a breach during the life of the agency agreement, and the trial court did not err in overruling the general demurrer.
2. The president of the defendant corporation testified that the amount sued for was due and owing to the plaintiff, except that he contended (a) that he was entitled to a credit of $393 for advertising, due to the fact defendant had agreed "to give us $1,050 advertising and I used up $393 and I applied that against it," and also (b) that defendant breached the contract by selling records to a competitor during its life, for which reason he was entitled to a credit of the amounts paid to obtain the agreement and to damages for the resale loss due to such breach.
As to the first contention, the defendant pleaded as the contract between the parties a letter written from the plaintiff to it, the letter stating: "If we receive from you immediately your order for 500 Remington records, you may place a 64" three-column
full length ad similar to Gimbel's ad. We will go along on Plymouth alone on a 50/50 basis, ads to run consecutive weeks of course, your purchases must warrant continuation of advertising allowances to this extent." It was undisputed that no order for Remington records was placed. By amendment the defendant added that plaintiff "also agreed to reimburse defendant for one-half of the cost of three newspaper ads to be run by the defendant in a local newspaper in the greater Atlanta area, advertising plaintiff's records, the entire cost of which three ads to plaintiff should not exceed the sum of $1,050.00. In keeping with said agreement defendant shows that it did on or about the 24th day of January, 1954, run an ad in the Atlanta Journal, the cost, of which was $786." (Emphasis added.) The figure $786 appears to be an error however, as defendant testified on the trial, "That ad cost us $393, but in keeping with the agreement I only billed him for $350." On cross-examination, however, he attempted to deny an agreement to be reimbursed on a 50-50 basis and testified, "They agreed to give us $1,050 advertising and I used up $393 and I applied that against it." Defendant thus puts three constructions upon the agreement in regard to advertising, two of which are in conflict with his sworn pleadings, never stricken or withdrawn, in which he pleads the contract upon which the right to set-off is based. A party to a suit will not be allowed to disprove an admission made in his pleadings without withdrawing it from the record. Florida Yellow Pine Co. v. Flint River Co., 140 Ga. 321 (78 S. E. 900); Alexander Hamilton Institute v. Van Landingham, 44 Ga. App. 606 (1) (162 S. E. 304); Dye v. Hirsch, post. A finding is therefore demanded that plaintiff agreed to reimburse defendant for the advertisement on a 50-50 basis, and that accordingly defendant was entitled to a credit of one half of $393, or $196.50 for advertising.
As to the second contention, the sworn pleadings and also the undisputed testimony upon the trial are to the effect that, by the letter dated January 15, 1954, defendant was granted a 60 day "exclusivity" in the sale of plaintiff's records, and that the renewal option therein was not exercised. Accordingly, March 16, 1954 was the 60th and last day of the contract. On March 17 the president of the defendant corporation overheard plaintiff's agent state in a long distance telephone call to his office, "I offered him the bait on this newspaper advertising but he wouldn't take it. Anyhow, I feel pretty good about it because I've got the High contract, the J. M. High contract, in my pocket for 5,000 records." Procurement of the High contract by the plaintiff on March 17 would not be a breach of its contract with defendant. There is no evidence which would justify the inference either that the contract was procured prior to March 17 or that the competitor had at that time received and offered for sale in the area any of plaintiff's records. Therefore, a finding is demanded that plaintiff did not breach its contract and thus defendant would not be entitled to any damages on that account, and that the verdict was demanded in the sum of $3,571.20 as sued for, less $196.50, or $3,374.70.
As above stated, the trial court did not take the position that the evidence demanded a finding against this plea, but did charge that it demanded a finding against the defendant in 1 of 6 named amounts, including $3,374.70 if the jury found for half the advertising, or $3,178.20 if they found for all the advertising. The verdict returned was $3, 198.20, and the plaintiff wrote off $20 on the theory that the jury had intended to credit defendant with all the advertising, thus reducing it to the authorized amount of $3,178.20. The trial court in granting the new trial further stated that he was morally certain the $20.00 was the result of a clerical error but was of the opinion that this verdict could not be "reformed" by writing off the unauthorized amount, and therefore granted the new trial. This opinion, in connection with the charge of the court, amounts to a grant of a new trial on the special grounds of the motion, all of which deal with this question, and to an overruling of the motion on the general grounds; and the question remaining for decision is therefore whether the grant on this ground amounts to an abuse of discretion under Code 6-1608 which provides that, "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge."
Hurst, 22 Ga. 312; Steadman v. Simmons, 39 Ga. 591; Stanford v. Murphy, 60 Ga. 164; Johnson v. Duncan, 90 Ga. 1; Augusta R. R. Co. v. Glover, 92 Ga. 132; Mayor of Brunswick v. Tucker, 103 Ga. 233; Savannah, Florida & Western Ry. Co. v. Godkin, supra [104 Ga. 655]." Central of Ga. Ry. Co. v. Perkerson, 112 Ga. 923, 939 (38 S. E. 365, 53 L. R. A. 210). Verdicts fall into two classes--where the amount thereof, in the event of liability, is a matter of arithmetical calculation and the plaintiff is willing to write off the excess, the verdict should be allowed to stand; on the other hand, in cases involving the value of a life, pain and suffering, or other items not subject to mathematical calculation but peculiarly for the determination of the jury, the excess cannot be mathematically calculated and consequently cannot be written off. Seaboard Air-Line R. v. Bishop, 132 Ga. 71 (63 S. E. 1103). Here the verdict is one of simple arithmetical calculation. A finding is demanded that the defendant owes the plaintiff more than the amount of the verdict and more than the amount of the judgment after writing off the $20 error. A finding is demanded also that the jury was authorized by the court's charge to find for the defendant the full amount of the advertising, and from all the facts it appears that the jury intended to return a verdict in an amount so authorized, a correction in the figures of which would not be error. See White v. Blasland, 42 Ga. 184; Gragg v. Hall, 164 Ga. 628, 637 (139 S. E. 339).
In Griffin v. Witherspoon, 8 Ga. 113, the court granted a new trial although the plaintiff voluntarily remitted that portion of the verdict not authorized by the evidence (it being subject to calculation), and on appeal this first grant of a new trial was held to be error. The Supreme Court stated: "We think the plaintiff had the right to remit the excessive damages found by the jury, and as that was the only ground taken for a new trial, the motion ought to have been refused. We do not readily perceive the reason or the policy which requires a party to litigate, when he is willing to surrender to his adversary all that he claims."
Here, the plaintiff has surrendered to the defendant, if not all that he claims, more than the undisputed evidence shoes him to be entitled to. A verdict was demanded in a sum slightly greater than that returned, but of this the defendant cannot complain. The grant of the new trial was based on an erroneous interpretation of the law and was therefore an abuse of discretion, there being no conflict in the evidence.
In McCrary v. Gano, 115 Ga. 295 (41 S. E. 580), cited by the defendant, the court undertook to add to the verdict, against the defendant's consent, an amount representing attorney fees as to which the jury had made no finding, thus increasing defendant's liability by an amount not included therein; and as to such amount the defendant did not have the benefit of a jury trial in contravention of Article I, Sec. I, Par. V. of the Constitution of this State (Code, Ann., 2-105). In Brooke v. Lowry National Bank, 141 Ga. 493 (4) (81 S. E. 223), and Rice v. Farmers Bank of Bowman, 149 Ga. 530 (101 S. E. 178), the defendant sought to have written off an amount from a verdict returned for the plaintiff, without the plaintiff's consent. In Davis v. Wright, 194 Ga. 1 (4) (21 S. E. 2d 88), the court sought to reform a verdict in material respects, including an award to the plaintiff of interest which the jury had not assessed against the defendant. In those cases the injured party was the complaining party, whereas here the contrary is true.
The trial court erred in granting the motion for a new trial.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
Arnold S. Kaye, Harold Karp, contra.
Julian E. Gortatowsky, Willingham, Gortatowsky & Morrison, for plaintiff in error.
Saturday May 23 03:09 EDT

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