Clift & Goodrich Inc. v. Mincey Manufacturing Co.

Jenkins, P. J. 1. Admissions of fact in the pleadings can always be taken advantage of by the opposite party, and can be used as evidence even though the pleadings should be stricken or withdrawn (Alabama Midland Ry. Co. v. Guilford, 119 Ga. 523, 46 S. E. 655; Mims v. Jones, 135 Ga. 541, 544, 69 S. E. 824; Improved Fertilizer Co. v. Swift, 15 Ga. App. 601, 609, 84 S. E. 132; New Zealand Ins. Co. v. Brewer, 29 Ga. App. 773, 116 S. E. 922); and it is the rule that a party to a suit will not even be allowed to disprove an admission made in his pleadings, without first withdrawing it from the record. Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321 (2) (78 S. E. 900). [39] This rule, however, has application to admissions of fact, and is not applicable where the admission is merely the opinion on the part of the party making it as to the legal effect of the instrument sued on, since it is the rule that where the cause of action set forth by the petition is the right to recover on the contract set out therein, the fact that the plaintiff may have erroneously construed the contract sued on would not operate to effect a dismissal of the action. McElmurray v. Blodgett, 120 Ga. 9, 16 (47 S. E. 531); Baldwin Fertilizer Co. v. Carmichael, 116 Ga. 762, 764 (42 S. E. 1002). But where the action arises merely out of a contract or agreement, and the cause of action consists of mutual obligations arising in furtherance therewith, and the plaintiff, in bringing his action, asserts and urges upon the court a legal conclusion with reference to the contract, upon which conclusion his cause of action is based and on which it is entirely dependent, and the opposite party, without awaiting, a ruling of the court, acquiesces in the proposition maintained by his adversary, and gives his case affirmative direction consistent with this asserted view, the action of the court in allowing this to be done affords no cause of exception to the party asserting the legal conclusion, whether the position so asserted and urged was correct or not. Really Company v. Ellis, 4 Ga. App. 402 (61 S. E. 832); Mehrtens v. Knight, 29 Ga. App. 390 (115 S. E. 506). Accordingly, in the instant case the plaintiff, having by its petition grounded its suit for the return of the purchase-price of certain goods upon the failure of the defendant to deliver the goods, expressly alleging that the goods had been “bought” by the plaintiff from the defendant, and that upon the payment of the purchase-price “said merchandise became and was the property of petitioner,” and the amendment to the petition, allowed without objection, not being in any wise inconsistent with the thepry upon which the suit was originally grounded, the court did not err in holding and in treating the contract between the parties out of which the transaction arose as one for purchase and sale, and in refusing to permit the plaintiff to introduce testimony for the purpose of showing that it was the intention of the parties that the contract was to be considered as one of brokerage and not as one for purchase and sale. Decided January 25, 1930. Adhered to on rehearing, March 1, 1930. 2. Whether or not the second count in the defendant’s amendment should have been-stricken on demurrer, as setting up a new and distinct cause of action, is immaterial, since the court construed the contract as one for purchase and sale, and expressly limited any recovery on the counterclaim to that construction of the agreement, as set forth in the first count. 3. The verdict in favor of the defendant on its counterclaim was authorized by the evidence, and under the foregoing rulings the judgment can not be reversed for any of the reasons assigned. Judgment affirmed. Stephens and Bell, JJ., concur. B. P. Gaillard Jr., Slcdon & Uopldns, for plaintiff. Bean & Wright, Wheeler & Kenyon, for defendant.