Orr v. Cooledge

Cobb, P. J. (After stating the foregoing facts.) 1. This was an equity case. The rule in reference to the manner in which exceptions to an auditor’s report in such a case shall be framed, where the exception is dependent upon the evidence, is now well settled. One of the latest utterances of this court in reference to this matter is found in the case of First State Bank v. Avera, 123 Ga. 598. See also Armstrong v. Winter, 122 Ga. 869, [499] and cit. No less than eleven of the^ exceptions of fact and seventeen of the exceptions of law in the present case are subject to the objection that, being dependent upon the evidence, the places in the brief of evidence where the testimony necessary to the determination of the questions raised by the exceptions appears are not pointed out in the exceptions, nor are such portions of the evidence attached to the exceptions as an exhibit. “The. exceptions should contain all facts and rulings necessary to show harmful error. It should not be so incomplete as to force the court to search through the record to find error. Hudson v. Hudson, 119 Ga. 637. “It should state what were the rulings complained of, the evidence on that point, and state of what and wherein the error consisted.” Weldon v. Hudson, 120 Ga. 699; Green v. Valdosta Guano Co., 121 Ga. 134. The failure of a party to comply with th'ese rules in reference to the framing of exceptions is a sufficient reason for a judge in an equity case to refuse to approve exceptions of fact, when a case is to be submitted to a jury, and a sufficient Teason for a judge, sitting both as judge and jury, to overrule all of such exceptions. 2. If there is any evidence to support the finding of an auditor and the judge has overruled exceptions to his finding, this court will not reverse the judgment. When an exception of fact states that the finding of an auditor was contrary to the preponderance of the evidence, it shows upon its face that there was some evidence to authorize the finding, and an exception of this character will not be considered by this court when the same has been overruled by the trial judge presiding as judge and jury in the case. 3. The auditor found that there was no contract of partnership, oral or written, entered into between the plaintiff and the defendants, The only’ writing relied on by the plaintiff was the agreement referred to in the foregoing statement of facts. This agreement upon its face shows that it was not intended as articles of partnership between the parties. Its very terms show that the intention of the parties was to form a corporation. The terms used and the language employed throughout the agreement are entirely consistent with the formation of a corporation, but utterly inconsistent with the formation of an ordinary partnership. The agreement is to form a “stock company.” “The business of the company” is to be of a certain character. Each party is to take a [500] specified amount of “stock.” When this amount of stock is paid in, “a charter” is to he obtained. The word “stockholder” appears throughout the agreement when the rights of the parties to the contract are referred to. The auditor was therefore correct in his finding that there was no partnership entered into between the parties. It is legally possible for an agreement to form a corporation to become, by oral modification and changes, the foundation for a partnership between the parties'. “More than this, it is legally possible for the promoters of a corporation to so conduct the business between the time the agreement for the formation of a corporation is entered into and the time that a charter is obtained, or the intention to procure a charter is abandoned, that the promoters may each have an interest in the business conducted between these dates. But in either event it must appear that the business was conducted by the parties in such a way that it is manifest there was to be a division of profits realized. Whether there was any evidence to authorize a finding by the auditor that the agreement to form a corporation had been changed so as to make it an agreement to form a partnership, or whether the business had been so conducted-that the plaintiff would be entitled to her proportionate share of the profits of the business as it was conducted, is not material now to consider. For there was certainly evidence authorizing the auditor to find to the contrary on both of these propositions ¿ and his finding having been approved by the judge, this court will not disturb it. The finding of the auditor against the plaintiff on the material issues in the 'case, was supported by the evidence, and the judgment overruling the exceptions to his report will not be interfered with. 'What has been said disposes of all of the-exceptions -of law and fact that are in such a condition that this court can properly deal with them. Judgment affirmed. All the Justices concur, except Lumpkin, J., disqualified.