Arkansas Fuel Oil Co. v. Andrews Point Co.

• Decision Date: 08 February 1941
• Docket Number: 28728.
• Citation: Arkansas Fuel Oil Co. v. Andrews Point Co., 64 Ga.App. 595, 13 S.E.2d 738 (Ga. App. 1941)
• Parties: ARKANSAS FUEL OIL CO. v. ANDREWS POINT CO.
• Court: Georgia Court of Appeals

13 S.E.2d 738

64 Ga.App. 595

ARKANSAS FUEL OIL CO. v. ANDREWS POINT CO.

No. 28728.

Court of Appeals of Georgia, Division No. 2.

February 8, 1941

Rehearing Denied March 26, 1941.

Syllabus by the Court.

McElreath Scott, Duckworth & Riley, of Atlanta, for plaintiff in error.

Geo & John L. Westmoreland and Joselove & Berman, all of Atlanta, for defendant in error.

SUTTON Judge.

The Andrews Point Company leased a vacant lot in the City of Atlanta to the Arkansas Fuel Oil Company, and the lessor agreed to build thereon a filling-station in compliance with plans and specifications furnished by the lessee. The lease provided, among other things, "To erect and complete such building and improvements with due diligence, provided however, lessor shall not be obligated to expend for such purpose more than $5000, lessee to pay any excess of that amount required for completion." After the building was erected and the improvements were completed the lessor brought this suit against the lessee to recover the sum of $2,482.46, which it contended it spent in excess of the $5,000 in making said improvements. A copy of the lease contract and an itemized statement of the cost of the labor and material, totaling $7,482.46, were attached to the plaintiff's petition. The defendant answered, denying that the plaintiff was entitled to recover. The jury returned a verdict in favor of the plaintiff for $2,182.46 principal and $108 interest. The exception here is to the judgment overruling the defendant's motion for new trial.

1. Error is assigned on the admission of the following testimony of Ben J. Massell, president of the Andrews Point Company: "As to what amount we paid out for the erection of this building in accordance with the plans and specifications, the building cost us in excess of $7400. I haven't got the exact figures before me, my book will show it. *** My company, the Andrews Point Company, paid for the construction of this filling-station, this building, the amounts set forth in this itemized statement as attached here and identified," on the grounds (1) that it was a conclusion and not the proper way to prove the cost of the construction of the building; (2) because it was based on the records of somebody else and the checks would be the best evidence of what he paid out; (3) that the witness did not testify that he knew that the expenditures which he said he made on the building were for things that actually went into the erection of the building.

In addition to the testimony of this witness which was objected to as just stated, he testified, without objection, that while the filling station was being erected he went by on an average of three times a day and inspected the building to see whether or not it was being properly constructed; that it was constructed in accordance with the lease contract and the plans and specifications for the building, and that it was completed, turned over to, and accepted by the Arkansas Fuel Oil Company, and he identified the paper signed by that company accepting the building after its completion. He further testified that the Arkansas Fuel Oil Company had one of its officials on the premises looking after and inspecting the construction of the filling-station while it was being erected on the vacant lot, and that that company also had a resident engineer on the job looking after the work while the building was being erected. The witness further testified that he was president of the Andrews Point Company, and that he had a bookkeeper, an architect, and a lady assistant who looked after the details of the work, but that he passed on the questions of making contracts, purchases, and the actual expenditures, and that when this question came up about this building every single dollar of the expense that went into the building was brought to his attention, that the figures were his bookkeeper's, but that he signed the checks that paid for every penny that went into the construction of the filling-station, and that in addition to signing the checks he also o. k.'d the contracts and pay rolls, etc.; and in testifying as to his own knowledge of the correctness of the itemized statement of the cost of the construction of the filling-station he testified that he not only went over those figures with his bookkeeper and that he and the bookkeeper went over each item with representatives of the Arkansas Fuel Oil Company and checked and rechecked each item, and that the representatives of the defendant company made no objection to any of the items, and he further testified that he knew of his own knowledge that the amounts set out in the itemized statement had been paid.

The court did not err in admitting the evidence objected to, as above specified. It is shown by the testimony of this witness, which was not objected to, that he was familiar with and had personal knowledge of all expenditures incurred in the construction of the filling-station. He had checked all the items of expense, and in fact had paid for all of the labor and material that went into the construction of the building and improvements by signing checks therefor, and he was in a position to testify from his own knowledge what his company had spent in the erection of the filling-station.

R. F Dalon, the bookkeeper for Mr. Massell's company, testified that he kept and supervised the keeping of the records of the labor and material used in the construction of the...