Opinion
36642.
DECIDED APRIL 17, 1957.
Action on account. Before Judge Boykin. Carroll Superior Court. January 7, 1957.
R. J. Brown, Earl Staples, for plaintiff in error.
Shirley C. Boykin, contra.
The trial judge erred in granting the judgment notwithstanding the verdict.
DECIDED APRIL 17, 1957.
Haralson Farm Supply Company, Inc., filed a suit on an open account against Floyd Harris, alleging that Harris was indebted to it in the sum of $3,487.03. The defendant filed an answer in which he alleged that he was not indebted to the plaintiff because they had engaged in a joint venture of raising eggs in which he was to furnish his labor and hen-house utilities and the plaintiff was to furnish the hens and their feed.
On the trial the defendant testified that: Mr. Kilgo came to his house and asked him to raise "hatching eggs"; he told Kilgo that he was not interested in layers because he was doing all right with broilers; Kilgo told him he could not lose; when the hens paid for themselves they would be his; if they were still in production he could buy feed from Kilgo and sell the eggs to whoever he wanted to; Kilgo said he would pay him 90 cents a dozen for the eggs; he was to deliver all of the eggs the hens produced to Mr. Kilgo; their agreement was that he was to furnish the hen-house, and all equipment necessary and Kilgo was to furnish the chickens and feed; the hens were to be delivered to his house, but he did not buy them; he delivered all the eggs the chickens produced to Kilgo, except the cracked ones which it was agreed he could keep; he bought eggs back from Kilgo that he wanted for his own use; he did not know what happened to the hens except he saw them being loaded in a truck and carried away.
In reference to an admission made prior to the trial, the brief of evidence contained the following statements made by the defendant on cross-examination: "I did go to Tallapoosa, Georgia, in the store of Haralson Farm Supply Company and in the presence of O. B. Kilgo and Mr. J. L. Barnes and beg them not to sue me, that I would — be lenient with me and I would pay this account, and I never complained or said I didn't owe it any time. Yes, Sir, I was hoping you would ask me that question. I say, I did not make that statement to them. I went up there; yes, sir. I did not make that statement." On redirect examination the defendant made the following statements: "The statement I did make there, they asked me what I wanted to do about the account. I said, I have lost twelve months work and about three thousand dollars, I don't feel like I owe you nothing, I have lost more than Y'all have."
O. B. Kilgo, witness for the plaintiff, testified in part: that he sold Harris the chickens and chicken feed; he made demand for payment; he was president of the Haralson Farm Supply Company, Inc.; Harris had admitted he owed the account and asked him to be lenient; he arranged for the purchase of the hens; he paid for the hens; he did not sell Harris's hens, and, if they were sold, Harris must have sold them; that he did not apply the eggs to the account because Harris used the eggs himself; he had no authority to sell Harris's eggs; when the hens were inspected he paid for it and charged it to Harris's account.
J. L. Barnes, witness for the plaintiff, also testified that Harris had admitted owing the account.
The jury returned a verdict for the defendant. The plaintiff filed a motion for a judgment notwithstanding the verdict which the trial judge granted. The defendant excepts to this ruling.
1. The plaintiff contends that the defendant failed to file an amendment within the time allowed by the trial judge, and therefore the purported amendment which the defendant filed never became a part of the pleadings. While it is true the amendment came three days late, the trial judge allowed it on the date it was presented, and this had the effect of extending the time in which to amend. This case is distinguished from Pasco Flour Mills Co. v. City Supply Co., 23 Ga. App. 95 ( 97 S.E. 558), and Park v. Moore, 44 Ga. App. 538 ( 162 S.E. 155), because in those cases the amendment was never allowed by the trial judge.
2. The plaintiff insists that there was no evidence on the trial to establish the fact of Kilgo's agency or that he was authorized to contract on its behalf. The plaintiff by suing on the contract ratified it, and it is estopped to deny that the president had authority to act for the corporation in representing the corporation by making contracts relating to the subject matter here involved. Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 460 ( 69 S.E. 734).
3. There was evidence that on an occasion prior to the trial the defendant admitted that he owed the account sued upon, but on the trial of the case he testified that by reason of matters of defense alleged in his answer he was not indebted to the plaintiff. It is the plaintiff's position that the defendant's admission that previous to the trial he had admitted liability was conclusive proof of that fact, demanding a verdict in the plaintiff's favor and authorizing the judgment notwithstanding the verdict.
The law is that a party to a case who has on former occasions, even when testifying as a witness on a previous hearing of the same case, admitted facts favorable to his adversary may testify to the contrary when he appears as a witness in his own behalf. Swift Co. v. Hall, 94 Ga. App. 239 ( 94 S.E.2d 145); Branan v. LaGrange Truck Lines, Inc., 94 Ga. App. 829 ( 96 S.E.2d 364); Phoenix Ins. Co. v. Gray, 113 Ga. 424 ( 38 S.E. 992); Owen v. Palmour, 111 Ga. 885 ( 36 S.E. 969). The weight and credit then to be given his testimony is for the jury. The rule has no application, of course, when, as in Koplin v. Shartle Bros. Machine Co., 150 Ga. 509 ( 104 S.E. 217), the admission made in the party's pleadings has not been stricken.
4. The defendant testified that: the agreement between him and the plaintiff was that he was to furnish the hen-house and all the equipment necessary for the hen-house and the plaintiff agreed to furnish the hens and their feed. There was sufficient evidence from which the jury could have found that the parties had entered into a joint venture. But regardless of the nature of the contract, there was evidence from which the jury could have concluded that the defendant had not purchased the hens and feed, but had only obligated himself to furnish the hen-house and its equipment, and was not liable for the price of the chickens or feed furnished by the plaintiff. The case was one for the jury, and the trial judge erred in granting the judgment notwithstanding the verdict that had been returned in the defendant's favor.
Judgment reversed. Felton, C. J., and Nichols, J., concur.