Chambers v. Williams Bros. Lumber Co
| Decision Date | 21 September 1949 |
| Docket Number | Nos. 32500, 32499.,s. 32500, 32499. |
| Citation | 55 S.E.2d 244,80 Ga.App. 38 |
| Parties | CHAMBERS et al. v. WILLIAMS BROS. LUMBER CO. et al. WILLIAMS BROS. LUMBER CO. et al. v. STADELMAN et al. |
| Court | Georgia Court of Appeals |
Williams Brothers Lumber Company sued J. M. Chambers and others to recover for lumber furnished to be used in the construction of a house for W. H. Stadelman, and to establish a special lien on the house for the price of the lumber.
The Civil Court of Fulton County, J. Wilson Parker, J., granted a nonsuit as to W. H. Stadelman and rendered judgment for the plaintiff against J. M. Chambers and others, and J. M. Chambers and others and the plaintiff brought error.
The Court of Appeals, Townsend, J., affirmed the judgments, holding that plaintiff's ledger sheet was properly admitted as an original entry, that plaintiff failed to establish a special lien on the property of J.
H. Stadelman, and that evidence made out a case against J. M. Chambers and others for the price of the lumber.
Syllabus by the Court.
1. A tradesman's shop book is admissible in evidence to prove an account between the original debtor and creditor when such book is identified by the oath of the person under whose supervision the book was kept to be the book of original entry of the account of such original debtor. Code, § 38-310; Harrold v. Smith, 107 Ga. 849, 851, 33 S.E. 640; Chastain v. Brown, 31 Ga. 346; Bracken & Ellsworth v. Dillon & Sons, 64 Ga. 243, 248, 37 Am. Rep. 70; Crump v. Bank of Toccoa, 41 Ga. App. 505, 153 S.E. 531; W. T. Rawleigh Co. v. Overstreet, 71 Ga.App. 873(8), 32 S.E.2d 574.
2. Where evidence is admitted over objection, though erroneously, but no exceptions are preserved to the admission thereof, the only exceptions being that the verdict is not supported by the evidence and that there is a fatal variance betweenthe pleadings and the proof, such grounds of exception are without merit when the evidence does in fact support the same cause of action and the petition could, by amendment, have been conformed to the proof so as to render the testimony admissible. Napier v. Strong, 19 Ga.App. 401 (2), 91 S.E. 579.
3. It is not error to grant a nonsuit at the conclusion of the plaintiff's evidence, where it appears that the evidence fails to prove the case as alleged.
Williams Brothers Lumber Company brought suit in the Civil Court of Fulton County against J. M. Chambers, J. I. Mann and W. M. Clay, and W. H. Stadelman.
The plaintiff's petition alleged substantially that the defendants Chambers, Mann and Clay were a copartnership engaged in the construction of houses; that they entered into a contract to build a house for the defendant W. H. Stadelman; that they purchased from the plaintiff Williams Brothers Lumber Company lumber and material to be used in the construction of the house according to an itemized statement attached to the petition and made a part thereof; and failed to make payment for a part of the same.
Also attached to the petition and made a part thereof is a claim of lien on the property of Mr. and Mrs. W. H. Stadelman upon which the house is alleged to have been constructed out of the materials bought by the defendant copartners from the plaintiff, which claim of lien is as follows:
On the trial of the case the plaintiff introduced as its witness its Secretary and Treasurer, R. W. Williams, who testified in substance that the book was the book of original entry of the account between the plaintiff and the defendants Chambers, Clay and Mann was kept under his supervision. The original ledger sheet of this account was identified by the testimony of this witness as such and introduced in evidence.
When the plaintiff's testimony was concluded, counsel for the defendant Stadelman moved for a nonsuit as to him and the same was granted. At the conclusion of the case against the other defendants, the jury returned a verdict in favor of the plaintiff and against the contractors in the amount of $1413.17, said sum being the unpaid balance as shown by the books of the plaintiff which were admitted in evidence. The defendants Chambers and Mann filed a motion for a new trial on the general grounds which was later amended by adding two special grounds. The trial court overruled the motion for a new trial as amended and these defendants excepted, which is the exception in Case No. 32500. The plaintiff excepted to the judgment of the trial court granting a nonsuit on motion of counsel for the defendant Stadelman and this exception is the basis of Case No. 32499.
No. 32500:Augustine Sams, Atlanta, Grigsby H. Wotton, Atlanta, for plaintiffs in error.
Thos. E. McLemore, Atlanta, Wm. H. Schroder, Atlanta, Lee E. Bobet, Atlanta, for defendants in error.
No. 32499:Thos. E. McLemore, Atlanta, for plaintiffs in error.
Augustine Sams, Atlanta, Grigsby H. Wotton, Atlanta, W. H. Schroder, Atlanta, Lee E. Bobet, Atlanta, MacDougald, Troutman, Sams & Branch, Atlanta, for defendants in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. One of the special grounds of the amended motion for a new trial contends that the trial court erred in admitting in evidence the ledger sheet of the plaintiff to prove its account. This is contended to be error because the witness by whom the ledger sheet was identified, R. W. Williams, did not know of his own knowledge about the delivery of the lumber, he having testified that as to the correctness of the account he was relying upon the ledger sheet.
Code, § 38-310 provides in part as follows:
The testimony of the witness R. W. Williams, who was Secretary and Treasurer of the plaintiff company, authorized the jury to find that the ledger sheet showing the account of the defendants Chambers, Clay and Mann was a sheet from the book of original entry made by the person whose duty it was to record, and who did record the entries therein in the regular course of business, and that the keeping of the books was done under the supervision of the witness R. W. Williams.
Books kept in ledger form may be books of original entry. See Bush v. Fourcher, 3 Ga.App. 43(3), 59 S.E. 459. Ledger sheets taken from the ledger or books of original entry are admissible in evidence even though detached from the ledger. See Crump v. Bank of Toccoa, 41 Ga.App. 505, 153 S.E. 531; W. T. Rawleigh Co. v. Overstreet, 71 Ga.App. 873(8), 32 S.E.2d 574.
A tradesman's shop book is admissible in evidence to prove an account between the original debtor and creditor when such book is identified by the oath of the person under whose supervision the book was kept to be the book of original entry of account of such original debtor. Code, § 38-310; Harrold v. Smith, 107 Ga. 849, 851, 33 S.E. 640; Chastain v. Brown, 31 Ga. 346; Bracken & Ellsworth v. Dillon & Sons, 64 Ga. 243, 248, 37 Am. Rep. 70; Crump v. Bank of Toccoa, 41 Ga.App. 505, 153 S.E. 531; W. T. Rawleigh Co. v. Overstreet, 71 Ga.App. 873(8), 32 S.E.2d 574.
For authority that the admission of the books in evidence is error counsel for the defendants cite Atlanta Journal Co. v. Knowles, 24 Ga.App. 745(1), 102 S.E. 191: Ninth Dist. Agricultural & Mechanical School v. Wofford Power Co, 37 Ga.App. 271(4), 139 S.E. 916. It will be noted that the exception in those cases was to the testimony of a witness rather than to the introduction of the books of account, the holdings in those cases being that the testimony of the witnesses as to the correctness of the accounts was inadmissible for that purpose, the witnesses in each of the cases having testified that they did not know of their own knowledge as to the correctness of the accounts but were relying upon certain entries made in the books. See also in...
To continue reading
Request your trial