Mitchell v. Schmidt

Dumpkin, J. (After stating the foregoing facts.) 1. There . was no error in refusing the motion to recommit this case to the auditor. If it was not too late to make the motion, and if the presiding judge had'a discretionary power in regard to it, he did not err in refusing it. On the subject of recommitting to aauditor, see Littleton v. Patton, 112 Ga. 438, (5); Fleetwood v. Bibb, 113 Ga. 618; Sanford v. Tanner, 114 Ga. 1006, 1015; Cureton v. Cureton, 120 Ga. 563. 2. It was determined by this court, when the case was previously before it, that there was nothing in the pleadings which raised the issue whether or not there had been a misappropriation of payments. But on that subject the jury could only inquire whether the demand to which the payments had been applied was correct, just, and due at the time they were made. When the case came on for trial after this ruling, it was sought to amend the pleadings by setting up, as a defense, misappropriation of payments. This the court rightly refused to allow. In Cureton v. Cureton, 120 Ga. 560, it was held that “ An amendment to the pleadings, raising new and distinct issues, is not allowable after the filing of an auditor’s report. But an amendment of a pleading to conform to the evidence submitted before the auditor without objection, and which does.- not raise any new issue, is permis [421] sible.” In that case it appears that evidence was introduced before the auditor without objection, on the subject of whether the demand of Cureton, one of the parties, was stale. He reported that Cureton, by his own delay and laches, lost his right to enforce contribution, and his demand was barred by the statute of limitations; but inasmuch as no .plea of the statute of limitations had been filed, the auditor recommended that the pleadings so be amended as to set up this defense, and, when so amended, that such claim of Cureton be held barred by the statute. This court held, that, under such circumstances, the amendment was properly allowed. Mr. Justice Evans, delivering the opinion, said distinctly that “ An amendment to pleadings setting up new and distinct issues is not allowable after the filing of an auditor’s report. . . The matter to which the amendment related was involved in the original issue, and no new issue was raised.” In the case at bar, as already noted, it has been distinctly held that there was no issue of misappropriation of payments made in the case as heard before the auditor. Therefore to file a plea to that effect now would be to raise a new and distinct issue. It was never intended, by what was said in Cureton v. Cureton, that if, in the •course* of an investigation before an auditor, some evidence should find its way into the record touching a point which ,was not in issue, after his report had been filed and a trial had, on exceptions to it one of the parties could so amend his pleadings as to ■set up a new and distinct issue based upon such casual statements or pieces of evidence. To allow this would be, as Mr. Justice Evans said, “ to make trials interminable.” On a keariug before an auditor many things may be said casually by witnesses, which are not objected to, or as to which there is no cross-examination, because they do not apply to any issue on trial and are ■considered of little or no consequence. To allow a party to proceed until he fails before the auditor, and then to file an entirely new plea based on such evidence, might work grave injustice ■or necessitate a reopening of the entire litigation. If there had heen a misappropriation of payments to an older debt, the defendant must have known it before the auditor made his report. 3. The 13th exception merely seeks to have this same point submitted to the jury; which the defendant was not entitled to have done. The bill of exceptions stated that none of the ex [422] ceptions to the auditor’s report were insisted on at the last trial, except those numbered 10 and 13. Exception No. 13 has been disposed of by what has been said. 4. Exception No. 10 alleges error in the auditor’s finding' of fact which is numbered “ 5 ” in his report, on the ground that, to reach the conclusion therein stated, the auditor charged the defendant with interest on the mortgage debt at the rate of eight per cent, per annum, while it is contended that the evidence showed that subsequently to the date of the mortgage an agreement was reached whereby the defendant was not to be charged with any interest whatever, and that this was based on a valuable consideration and was binding. The auditor’s finding of fact which is numbered “ 5,” and to which this exception is directed, is as follows: “ There was due and unpaid on said note on the 20th day of September, 1895, the sum of $1,396.44, and nothing has been paid on it since that date. There is now due said sum of $1,396.44, and interest on the same at eight per cent, per annum from said 20th day of September, 1895.” Immediately following this finding in the auditor’s report occurs finding of fact No. 6, which is as follows: “The items of interest included in the statements of account rendered by plaintiff and by Smith and Wylly to defendant, after October 30, 1891, were the interest on said note, and no other interest was charged. The agreement between plaintiff and defendant that no interest should be charged did not apply to said note.” To this finding no exception was taken, or at least none is now insisted on or contained in the present record. Therefore it stands as being unexcepted to and conclusive. If the agreement to charge no interest did not apply to the note, then it follows, as matter of course, that in estimating the amount due on the note interest would be calculated at the rate stated in it. And therefore the exception to the finding numbered “ 5,” standing alone, is without merit. It is contended by plaintiff in error that this case was one at common law, and not in equity, and therefore that exceptions of fact should have been submitted to the jury; or that, if it should be treated as an .equitable .proceeding, having already been submitted once to the jury it could not afterwards be withdrawn from their consideration by the presiding judge. It is immaterial whether either of [423] these positions he correct or not. The presiding judge did not strike or dismiss the exception, but directed a verdict, holding, in effect, that there could be but one finding by the jury. In this we concur with the judge. One exception being covered by the former ruling of this court, and the other point being concluded by a finding unexcepted to, and also being without merit, there was but one possible finding. Moreover, it was held, when this case was formerly here, that “ The general rule is, that, in the absence of clear indications to the contrary, promises, each of which forms the whole consideration for the other, will not be held to be independent of one another; and a failure of one party to perform on his part will exonerate the other from liability to perform.” The plaintiff testified that the defendant did not deliver the timber as he agreed. In the brief of the defendant’s evidence accompanying the auditor’s report occurs the following statement:, “ When I applied for last advancement I told Mr. Schmidt that I expected to have a good deal of dealings with him. He declined to advance me money, and that stopped me. I could not go on without help, and his refusal to help me further placed me where I had to stop. (Objection to this evidence — no evidence to support it.) My recollection is I wrote him I could not go on because he would not advance balance of the five hundred dollars agreed on.” Accompanying the auditor’s report in the record, and apparently forming a part of it, is a statement of his rulings on the evidence. One of these is that “Plaintiff objects to defendant’s testimony that he stopped sawing timber for plain-, tiff because the latter refused to make him further advances, on the ground that there is nothing in defendant’s plea to support this evidence. Sustained, and evidence ruled out.” As to considering this ruling, see. Tifton Ry. Co. v. Chastain, 122 Ga. 250. Judgment affirmed. All the Justices concur, except Simmonst C. J., absent.