Baitcher v. Louis R. Clerico Associates, Inc., 49014

• Decision Date: 25 June 1974
• Docket Number: No. 49014,Nos. 1,3,2,49014,s. 1
• Citation: 132 Ga.App. 219,207 S.E.2d 698
• Parties: Daniel BAITCHER v. LOUIS R. CLERICO ASSOCIATES, INC
• Court: Georgia Court of Appeals

Page 698

207 S.E.2d 698

132 Ga.App. 219

Daniel BAITCHER v. LOUIS R. CLERICO ASSOCIATES, INC.

No. 49014.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 25, 1974.

Find & Block, Sturgis G. Bates, III, Atlanta, for appellant.

Johnston & McCarter, Ralph E. Carlisle, Atlanta, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Plaintiff sued for the balance due on a contract entered March 26, 1969 for the interior design of a restaurant and the furnishing of lighting fixtures and furniture for it. Defendant denied any indebtedness existed and raised the defense of accord and satisfaction. The defendant also claimed that he had to employ others to repair work improperly performed by plaintiff and to complete certain other work not performed as agreed.

On April 4, 1972 the complaint was filed and on May 8, 1972 defendant filed its answer. On February 22, 1973 defendant moved for leave to file a counterclaim and an amendment to answer by adding counterclaim. On February 26, 1973 plaintiff filed motions to strike. Following a hearing, the trial judge, on March 23, 1973 denied the motion to allow the counterclaim and sustained the motions to strike. Following a trial on June 14, 1973 before the judge sitting without a jury, judgment was entered against the defendant in the amount of $20,518.25. On June 19, 1973 defendant moved for a new trial which, following a hearing on September 20, 1973 was denied. Defendant appeals from the judgment entered on June 14, 1973 and from the order denying a new trial. Held:

1. Appellant's initial enumeration alleges that the court erred in not allowing the filing of the counterclaim. The granting of motion for leave to file the latter is discretionary with the court. Code Ann. § 81A-113(f). 'Before a delayed filing of a counterclaim is allowed, the court should require the submission of evidence and make a finding therefrom as to whether the delay was occasioned by oversight, inadvertence or excusable neglect. A finding of oversight or of inadvertence is unsupported if it appears from the pleadings or the facts that the defendant or his counsel had knowledge of the existence of the claim when the defensive pleadings were prepared and filed in the first instance. 'It is true that as a general rule, leave to amend (and to set up a counterclaim) shall be given freely, but this does not dispense with the necessity of showing that justice so requires. (cit. omitted)" Blount v. Kicklighter, 125 Ga.App. 159, 161, 186 S.E.2d 543, 545.

Evidence in the instant cases clearly reflects that defendant and his counsel had knowledge of the counterclaim when the answer was filed some eight months earlier. The court found that the delay was not due to oversight, inadvertence or excusable neglect. We find no abuse of discretion and that there is no error.

2. Appellant complains that the trial judge erred in permitting the introduction of parol evidence to attack a memorandum of an executed contract of accord and satisfaction. The testimony complained of was to the effect that plaintiff had written and furnished a letter indicating that the total cost of the work performed had been paid in full so that defendant could satisfy certain creditors and thereby enable plaintiff to get money owed him by defendant. Parol evidence is admissible to show that the writing was either originally void or subsequently became so. Code § 38-503. 'Parol evidence here was admissible to deny the existence of a valid written contract, and not to contradict it.' Eastern Motor Co. v. Lavender, 69 Ga.App. 48, 49, 24 S.E.2d 840. We find no error.

3. Appellant enumerates that the court erred in failing to grant his motion for dismissal on the ground that upon the facts and the law, the plaintiff had shown no ground for relief. In the instant case, the court as the trier of facts rendered judgment against the defendant. See Civil Practice Act § 41(b). It is only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict that such verdict shall be directed. Civil Practice Act § 50. The converse here prevails and we find no error. The provision of Section 15 of the Civil Practice Act, as amended (Ga.L.1966, pp. 609, 627; 1968, pp. 1104, 1106; 1972, pp. 689, 694; Code Ann. § 81A-115(a)) permitting amendment without order of court prior to pre-trial order, has no relationship to and does not permit by amendment the late pleading of a counterclaim, which can only be done by order of the court under Section 13(f) of the Civil Practice Act (Ga.L.1966, pp. 609, 625; Code Ann. § 81A-113(f)).

4. Appellant complains that the court erroneously admitted certain plaintiff's exhibits in violation of the best evidence rule. The exhibits were carbon copies of documents purportedly mailed to defendant, who denied having received the originals. Assuming, arguendo, that proper objections to these exhibits were made at proffer the enumeration is without merit. '(A)ll papers executed by the same stroke upon a typewriter-those written by carbon impressions, as well as the sheet which receives the stroke of the letter from the typewriter-are alike originals . . .' Carmichael Tile Co. v. McClelland et al., 213 Ga. 656, 659, 100 S.E.2d 902, 905. '(D)uplicate or triplicate originals, made with the same stroke of pen or typewriter as the original are admissible as primary evidence.' Campbell v. Pure Oil Co. et al., 92 Ga.App. 523, 524, 88 S.E.2d 630, 631.

5. The remaining enumerations of error have been considered...