Fuller v. Fuller

ON REHEARING.

The defendant in the court below, who was seeking to defeat the father’s action on a note by setting up payment by way of board furnished to the father, filed a motion for rehearing, which has been granted, in which motion it is set forth that “there is and was no demurrer urged to the original answer,” and that, consequently, the court in the original decision was inaccurate in stating that the amendment was made in response to a demurrer. It will be recalled that the original plea by the son alleged that it was agreed at the time the note was executed that it was not to be paid in money, but by the father’s boarding it out. By one paragraph of the amendment it was alleged that at the end of each month, during the period in which board was furnished, the father ratified *28the original oral agreement to the effect that $16.67 per month should apply on the note. In another paragraph of the amendment it was stated that at the expiration of the tliree-year period the plaintiff and the defendant entered into a contract with reference to the satisfaction of the note, by which it was agreed that the note had been paid in full, in consideration of the board furnished, except the last year’s' interest, which it was alleged was subsequently paid by the furnishing of additional board. The trial court, in response to such proffered amendment, passed the following order: "The above and foregoing amendment allowed only in so far as it pleads payment by way of set-off.” The statement by this court with reference to the allowance of the amendment in response to a demurrer is not substantiated by anything in the record, and the impression must have been received from the nature of the amendment, the order passed by the trial judge, the fact that no effort was made to prove the original plea, as well as statements contained in the brief of counsel for plaintiff in error. This statement, with reference to an oral motion to strike in the nature of a demurrer, he reiterates in his brief on the rehearing. This court, however, must, of course, be governed by the record, and can not pass upon controversies between counsel as to their recollection concerning what did or did not occur on the trial. Accordingly, the case must be determined without reference to any demurrer having been interposed to the original plea and answer of the defendant.

On the rehearing counsel for the defendant takes the position that a verdict in behalf of the defendant was authorized under the evidence by reason of testimony having been admitted without objection, setting up an implied obligation of the father to pay for the services rendered by the son, and that since the pleadings as amended could have been further amended to conform to such evidence thus admitted without objection, it was not error for the court to charge upon the right of the defendant to recover on an implied contract. This position is strongly urged by counsel for the defendant, and presents a question of some difficulty in the minds of the court. See Napier v. Strong, 19 Ga. App. 401 (91 S. E. 579). In his ingenious brief on the rehearing, counsel for the defendant insists that the evidence did in fact authorize a finding in favor of the son upon an implied obligation on the part *29of the father to pay for the services, and it is pointed out that this court itself indicated as much in its original opinion, wherein it was held that “it might have been misleading to the jury and harmful to the plaintiff for the court to instruct them in effect that while ordinarily there would be no implied obligation on the part of the father to pay for the services rendered by the son, ‘there may be cases where the law will imply a contract where the parent is to pay the child for the services rendered by the child to the parent.’ In other words, the jury might, under this instruction, have believed the testimony of the father denying the agreement set up by the amendment, but might nevertheless have felt that in view of all the testimony and the evidence of surrounding facts and circumstances, there was an implied obligation of the father to pay for the services rendered, irrespective of any expressed understanding as set forth by the amendment, and upon which the defendant’s right to prevail was solely dependent.”

"VVe have quoted this language from the original opinion as referred to by the defendant on rehearing, although we do not think that the language of the opinion, when properly construed, actually means that there was any real evidence setting up an implied agreement to pay on the part of the father, the only evidence being that the services rendered were worth the amount of the note, and that, after the board had been furnished, the father, in terms and by an express agreement, cancelled the note in consideration of what the son had thus done for him. The purpose of the court in the statement made was to say that the charge “might have been misleading to the jury,” and that, irrespective of any lack of real testimony sustaining such an implied obligation, such an instruction from the court might have been confusing and misleading to the jury, under all the facts and circumstances of the case. Under the law as charged by the court, the usual and ordinary implied obligation would not arise on the part of a father to pay the value of services rendered by a son. The mere fact that the services might have been worth the sum testified to would not afford any proof such as might operate to change the rule, although, as stated in the original opinion, such an irrelevant charge might very well indeed have been misleading and confusing to the jury. Thus, even were it to be assumed, but without so deciding, that under the principle of law now invoked by the defendant, where there is evidence, admitted *30without objection, setting up and establishing an affirmative counterclaim, a charge of the court relative thereto would be justified under a defensive plea merely setting up payment, on the theory that such plea might have been amended so as to make relevant the evidence establishing such an affirmative counterclaim, in the instant case there being not only an absence of any pleading setting up such an affirmative counterclaim . arising out of an implied promise to pay, but there being no evidence such as would legally establish the validity of such a claim, the charge of the court with reference thereto must be taken to have been susceptible of having the effect of misleading the jury. Judgment adhered to.