Price & Maas v. Bell & Son , 88 Ga. 740 ( 1892 )

Simmons, Justice.

Price & Maas sued the firm of T. J. Bell & Son upon an account. No written plea appears to have been filed. A verdict was rendered in favor of the defendants. The plaintiffs excepted to the overruling of their motion for a new trial, and also to the allowance by the coui’t of certain amendments to the brief of evidence. In addition to the general grounds that the verdict was contrary to law and the evidence, it was alleged that the court erred in admitting the testimony of T. J. Bell that “the debt sued on was not a partnership debt of T. J. Bell & Son, but was the individual debt of T. J. Bell, and to be paid out of a debt due T. J. Bell & Son by one S. T. McDaniel” ; it being objected by plaintiffs’ counsel that there was no plea of file under which the testimony was admissible, defendants’ counsel having merely marked their names on the docket at the first term.

1, 2. The code, §8458, declares: “The general issue is a denial of the allegations in the plaintiff’s declaration, and shall be considered as filed in all cases which are answered to at the first term ; and no other evidence is admissible under such a plea except stich as disproves the plaintiff’s cause of action;"all other matters in satisfaction or avoidance must be specially pleaded.” The marking on the docket at the first term of the names of counsel for the defendants was equivalent to answering, and under this section of the code was in effect a plea of the general issue. Simon v. Myers & Marcus, 68 Ga. 74. It was argued, however, that the testimony objected to was not admissible under the general issue, its purpose being to set up matter in satisfaction and avoidance, by showing an agreement by the plaintiffs to look to a third party for payment. We think the testimony was admissible. The defendants were 'sued as a partnership. The general issue amounted to a denial that the account sued ou was a debt of the partnership ; and was sufficient, therefore, to warrant the admission of testimony going to negative any contract, express or implied, with the partnership touching the goods embraced in the account. The testimony objected to showed, or tended to show, that the account constituted a debt against one of the members of the firm, individually, and not. against the partnership. If it was merely his individual debt, the plaintiffs had no cause of action against the firm. Code, §1911. The agreement was not set up as in satisfaction of any debt of the partnership, and was not matter in confession and avoidance of such a debt. It was not an admission that the plaintiffs had ever had a cause of action against the partnership. It was therefore not matter which must be specially pleaded.

3. It was argued that as the evidence of oné of the partners admitted that the debt was contracted as against himself individually, a verdict in favor of the defendants was improper, and was contrary to the charge of the coui-t that the jury could find against this partner if they believed it was his individual debt. Had the pleadings raised ‘any issue as to the several liability of this partner, a verdict against him would have been proper. Even where there is no such issue in the pleadings, it has been held that evidence of this kind would sustain a verdict against one partner alone. Maynard & Son v. Ponder, 75 Ga. 664; Ledbetter & Harris v. Dean, 82 Ga. 790. But certainly the jury are not bound to find a verdict upon an issue not made by the pleadings. Here the suit was against the partnership, and there was no amendment nor any offer to amend so as to raise the question of several liability. The issue made by the defendants’ plea was simply whether or not the partnership was indebted; and the jury found in favor of the defendants upon that issue. They were not required to go further and find against one of the defendants upon a claim which the plaintiffs did not make.

4. Construing the verdict as finding in favor of the partnership and as leaving open the question of the several liability of T. J. Bell, tbe verdict was warranted by the evidence, though the evidence was conflicting. Not only was there testimony by both of the defendants showing that the debt was an individual debt of T. J. Bell and that he had no authority to have it charged to the firm, but two bills of tbe goods and a monthly statement of the plaintiffs were introduced, which were made out by them against T. J. Bell individually.

5. After the brief of evidence had been agreed upon by counsel, approved by the court and filed, counsel for the defendants in error, at the hearing of the motion for a new trial, moved to amend the brief by the insertion of new matter; and the amendment was allowed, over the objection of counsel for tbe plaintiffs in error. A brief of evidence is amendable, notwithstanding it has been agreed upon, approved and filed, but the introduction into the brief, whether originally or by amendment, of anything other than evidence, is erroneous. Here counsel were permitted to amend by inserting not only additional testimony, but statements as to objections and rulings at the trial and as to the refusal of the court to give in charge a request of the defendants. In this case, however, the error was harmless, and is not ground for a reversal. Judgment affirmed.