Brock v. Wildey

Evans, P. J.

(After stating the facts.)

1, 2. One exception of law related to the overruling of the demurrer, and another to the auditor’s refusal, on oral motion, to dismiss the case for the reason that the cause of action as stated in the petition was barred by the statute of limitations. These exceptions were properly overruled. The substance of the demurrer was that no cause of action was alleged; that the petition was multifarious, in that separate and distinct .causes of action were sought to be joined; and that the allegations of the petition were insufficient to put the defendant on notice of what he is charged. The demurrer failed to specify wherein the 'petition was indefinite, and is itself too general to call for greater particularity of statement. The cause of action alleged in the petition is the' assertion 'by a principal of his right to recover, from his agent, money fraudulently -procured and misapplied by the agent. The defrauded principal is not required to bring separate suits for each fraudulent transaction, but may join all in one suit. Nor does it appear on the face of the petition that the cause of action is barred by the statute of limitations. The petition was filed in May, 1900, and it was alleged that from time to time, beginning on December 22, 1894, the defendant fraudulently procured from the plaintiff divers sums of money for investment by the defendant for the benefit of the plaintiff, and that, instead of executing his trust, the defendant appropriated the money to his own use. The plaintiff’s cause of action had its origin in the agent’s fraudulent conversion of the money instrusted to him for investment for his principal’s benefit. The date of this conversion is not alleged; and if the defendant desired to have the precise time alleged, he should have called for such allegations by special demurrer. The rule is that where it does not affirmatively appear upon the face of the petition that the cause of action is barred by the statute of limitations, this defense can not be made by general demurrer setting up that the action is barred by the statute, but is matter for plea. Stringer v. Stringer, 93 Ga. 320 (20 S. E. 242); Coney v. Horne, 93 Ga. 723 (20 S. E. 213); Pass v. Pass, 98 Ga. 791, 795 (25 S. E. 752).

3. The auditor reported as a finding of law “that IT. G-. Brock, the defendant, was the continuing and confidential agent of W. Ii. Wildey, the plaintiff, for the purpose of collecting, investing, and taking care of funds of Wildey, and that the statute of limitations did not begin to operate against Wildey until after February 8th, 1898, at which time Brock wrote Wildey a letter offering to settle matters between them.” The exception to this finding is that the allegations of the petition make no such charge; that the finding is contrary to the evidence and without evidence to support it. This finding of the auditor is one of mixed law and fact, and its correctness can not be determined without a consideration of the evidence upon which it is based. Treating the exception filed thereto as purely one of law, it is an effort to raise anew the point involved in the motion to dismiss the plaintiff’s case because barred by the statute of limitations, and is covered by the ruling on that motion. The finding of the auditor, however, was not a construction of the pleadings, but a statement of his conclusion from the evidence that the plaintiff’s cause of action was not barred, for the reason that the agency was a continuing one, and that the statue only began to run from the time the agent offered to settle with the principal. Treated as an exception of fact, it is imperfect and incomplete, because the evidence necessary to be considered in passing 'thereon is neither incorporated therein, nor attached thereto as an exhibit, nor pointed out in the brief of evidence prepared and filed by the auditor. First State Bank v. Avera, 123 Ga. 598 (51 S. E. 665). Because of this imperfection the court very properly overruled this exception, and disapproved those exceptions of fact which were defective in the same particulars.

4. The court approved the exceptions to the 8th and 14th findings of fact by the auditor. The eighth finding was as follows: “I find that J. R. Driver, A. I. Head, and H. G. Brock purchased from C. W. Lipham, administrator, certain property described in a deed dated Oct. 6th, 1897; recorded in book £W’ folio 115, Oct. 13th, 1904. I find from the evidence that U. G. -Brock used a part of the money that he received from Wildey to pay for his one-third interest in the above-described land.” The 14th finding was: “I rule that W. H. Wildey, the plaintiff, is entitled io a special lien against the one-thircl interest of U. G. Brock in the lands described in the deed from Lipham, administrator . . [described in the 8th finding], for the purpose of collecting and satisfying said debt of $1,072.35.” In the submission of the issues formed thereon the court prepared certain questions which were answered by the jury, as follows: “Q. Was any money of the plaintiff, W. H. Wildey, invested in the Lipham farm by the defendant, H. G. Brock? Ans. Yes. Q. If any of 'W. H. Wildey’s money was invested in Lipham farm, when was such money so invested, and how much of such money was so invested? Ans. Three hundred dollars, about April 1, 1896.” In the motion for a new trial complaint is made as to the correctness of certain instructions of the court in submitting the ease to the jury. One ground is that the court erred in charging, “If you find from the testimony it, the case that six hundred dollars of- the plaintiff’s money was invested in this farm, or any part of such sum was so invested, then it would be your duty to so find by your verdict, naming the sum.” The exception is that the charge is too general, and assumes that the defendant was the plaintiff’s agent. The criticism is unmerited. The court in stating the case informed the jury that the plaintiff contended that of the money he sent defendant to invest for his benefit $600 was used by the defendant in the purchase of the Lipham farm on his own account, and that the defendant on the other hand denied that he used any of the plaintiff’s money in buying this farm. The charge was adjusted to the pleading and evidence, and was not erroneous for the reason assigned.

The court charged, “In order for the plaintiff to recover in this case it is not necessary that his money should have gone into the farm at the time it was purchased jointly by the defendant with Head and Driver. If afterwards the property was sold to a third person and purchase-money notes were given for said land by such third person, and the plaintiff purchased said notes, and while holding said purchase-money notes was induced by the defendant to part with the same and allowed the same to become converted by the representations of the defendant that the plaintiff would thereby obtain title or interest in such farm or any part thereof, and if he parted with said notes and the plaintiff believed and relied on such representations, then this would create such an equity in the plaintiff, Wildey, as would authorize you, and it would be your duty, to find the value of such note as was invested in the farm, provided, however, that you could not find that more than the sum of six hundred dollars was so invested.” The nomplaint is, (1) that the court expressed an opinion that some of the plaintiff’s money went into the purchase of the farm, and assumed that the defendant induced the plaintiff to part with certain notes, and allowed the same to be converted, by representations of the defendant that the plaintiff would therebjr retain title or interest in -such farm or some part thereof; (2) of the failure to charge other pertinent propositions of law in immediate connection; and (3) because the pleadings and evidence did not authorize the instructions given. The excerpt of the charge, construed in the light .of the context, is not open to the criticism that the court expressed an opinion concerning the facts. Nor is a correct charge rendered erroneous by failure to charge in immediate connection therewith some other appropriate principle of law. The evidence and pleading warranted the instruction.

5. It is not erroneous in the trial of exceptions of fact to an auditor’s report, where exceptions of law filed thereto have .been overruled, to instruct the jury that the auditor’s report is prima facie correct as to the facts which it finds, and the onus is >on the party excepting to show that it is erroneous. Arthur v. Commissioners of Gordon County, 67 Ga. 220; Poullain v. Poullain, 76 Ga. 420 (4 S. E. 92); Schmidt v. Mitchell, 117 Ga. 6 (43 S. E. 371).

6. The letters from the defendant to the plaintiff related t® the transactions involved in the issue before the jury, and were competent evidence; and the court properly overruled the objection of irrelevancy. The evidence amply supported the verdict, which has the approval of the trial judge; and the judgment denying a new trial is Affirmed.

All the Justices concur.