Opinion
34465.
DECIDED JANUARY 27, 1953.
Breach of contract; from Cook Superior Court — Judge Smith. November 7, 1952.
McCall Griffis, for plaintiff in error.
Wright English, contra.
The evidence being in conflict as to whether the defendant wrongfully refused to perform the contract and to continue the business agreement with the plaintiff, the verdict in favor of the defendant generally, in an action for damages on account of the alleged breach by the defendant of such contract, was authorized, and the trial judge did not err in overruling the plaintiff's motion for a new trial, which was based on the general grounds only.
DECIDED JANUARY 27, 1953.
S.C. Latham filed suit in Cook Superior Court against L. L. Duke for breach of a contract. The plaintiff contended that the defendant had breached a contract which had been entered into between the parties on June 1, 1949, whereby the plaintiff, by reason of his alleged experience, skill, and knowledge as an expert in the chicken and egg business, was to operate and manage a chicken farm near Adel, in said county, and the defendant was to furnish the capital required to finance such business. It was agreed that, in addition, the defendant was to furnish additional labor which might be required and furnish to the plaintiff his personal expenses until said business was profitable. "It was further agreed that when the business became profitable, then they each would be one-half owner of the same." This contract was to run for ten years and the lease was to be obtained from D. E. Jackson for the premises whereon to run the farm.
The defendant demurred to the petition both generally and specially and, upon its amendment by the plaintiff, the court overruled such demurrers. No exception thereto was taken by the defendant. The defendant admitted that he had such a contract with the plaintiff for the operation of a chicken business, and that the plaintiff was to furnish the labor and the defendant the money required to operate it, and that, when the business reached a profitable basis, the plaintiff was to have a half interest therein. The defendant denied that the business had been profitable, and denied that he had wrongfully terminated the agreement and had breached it. He also denied that it was to operate for ten years. The defendant set up that the plaintiff had misappropriated and converted moneys for which he should have accounted to the defendant, and he prayed for judgment in his favor. By an amendment the defendant prayed for an accounting, and that he have judgment against the plaintiff for one-half of the losses. The jury returned this verdict, "We the jury find in favor of the defendant." Judgment was entered thereon. The plaintiff moved for a new trial on the general grounds only, and excepts to the judgment denying the motion.
There is only one question for determination under this record, and that is whether or not there was sufficient evidence to authorize the jury to return a verdict for the defendant. While he prayed for a judgment for one-half of the losses against the plaintiff and for an accounting, the verdict rendered was to the effect that the defendant was not liable to the plaintiff for the damages sought. Did the evidence before the jury demand a finding that the defendant, L. L. Duke, had breached the agreement between himself and the plaintiff and was, therefore, liable to the plaintiff for whatever damages directly flowed from the alleged breach? We do not think that the evidence demands a verdict supporting the pleadings and contentions of Latham, in his petition relative to the contract and the defendant's alleged breach thereof and consequent injury and damage to the plaintiff. The evidence was contradictory and in sharp conflict as to the salient and material issues involved; and this being so, the question was one for the jury. They were the sole arbiters of the facts, and they were at liberty to believe the defendant and disbelieve the version given by the plaintiff in his testimony. Where there is a conflict in the evidence, it is the exclusive prerogative of the jury to determine the credibility of the witnesses who appear and testify before them; and the appellate court will not reverse the judgment of the trial judge in overruling the motion for a new trial, which is based entirely on the general grounds. See Moss v. Moss, 169 Ga. 734 ( 151 S.E. 506). This court is one for the correction of errors of law alone, and therefore has no jurisdiction of errors of fact, and will not grant a new trial on the ground that the verdict is contrary to the evidence if there is any evidence at all to support it. See Edge v. Thomas, 9 Ga. App. 559 ( 71 S.E. 875). "The weight to be given the evidence is a matter left to the jury; and a verdict based on conflicting evidence will not be disturbed when the evidence reasonably tends to support it." Piedmont Hospital v. Anderson, 65 Ga. App. 491 (4) ( 16 S.E.2d 90). The jury heard the testimony of the plaintiff as well as that of the defendant, and they were at liberty to believe that version of the performance of this agreement they saw fit — that which they believed to be the most credible. The conflict in the evidence related to whether there had been a wrongful failure and refusal on the defendant's part to perform this contract, that is, failure and refusal to carry on the operation of this chickenfarm business with the plaintiff, as a result of which failure and refusal to property perform such agreement to operate this business the defendant damaged the plaintiff. The jury found that there had not been such a failure and refusal by the defendant. It is true that, where two or more persons make a parol agreement to enter into a contract to form a partnership and operate a business, and one of them wrongfully and without justification fails and refuses to comply with his part of the agreement, the other party has a right of action against him for a breach thereof, and may recover such damages as are sustained by and result from such breach. See Lane v. Lodge, 139 Ga. 93, 98 ( 76 S.E. 874), citing Mann v. Bowen, 85 Ga. 616 ( 11 S.E. 862). However, the evidence here does not demand a finding that the defendant wrongfully refused to continue the operation of this business to the plaintiff's consequent injury and damage, as contended.
The verdict was authorized by the evidence, and the motion for a new trial being on the general or statutory grounds only, the court did not commit error in denying a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.