Daniel v. Dixie Plumbing Supply Co.
| Decision Date | 23 September 1965 |
| Docket Number | No. 41516,No. 1,41516,1 |
| Citation | 145 S.E.2d 796,112 Ga.App. 427 |
| Parties | Carroll E. DANIEL et al. v. DIXIE PLUMBING SUPPLY COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The mere fact that a general contractor, suing a subcontractor to recover overpayments, prays that unpaid materialmen of the subcontractor intervene to show the amount of their claims, and that the court thereafter issues a rule nisi directed to such materialmen, is not such a pending action within the meaning of Code § 3-601 as will abate a suit by one of the materialmen against the prime contractor and the surety on his bond.
2. Invoices for materials shipped by the materialman to the job site at the behest of the subcontractor were properly identified and admitted in evidence.
3. A requested instruction which is presented in almost the same words to the jury, and which is in fact more favorable to the movant as given than as requested, will not constitute reversible error.
4. When the substance of a requested instruction is given and there is no assignment of error on the ground that the instruction was not given in the exact language requested, no issue is presented for decision.
5. Where a materialman furnishing material to a subcontractor and failing to receive payment sues the prime contractor engaged in a public work and the surety on his bond, proof that the prime contractor has paid certain sums to the subcontractor and that the subcontractor, who had several accounts with the materialman, also paid certain sums to the materialman but failed to specify to which account the money should be allocated, will not defeat a recovery by the materialman directly against the prime contractor and his surety, it being shown that the materialman exercised his right to allocate the general payments to accounts other than that of the defendant.
Carroll Daniel, doing business as Carroll Daniel Construction Co., entered into contracts with the State of Georgia to build certain armories, pursuant to which he executed a payment bond on which the codefendant Continental Casualty Co. was surety. Daniel subcontracted with Sam Edmondson doing business as Bibb Plumbing & Heating Co., for the installation of plumbing and heating, and the subcontractor in turn purchased materials for this purpose from Dixie Plumbing Supply Co. Upon failure to receive payment the latter sued the prime contractor and its bond surety, the trial resulting in a verdict for the plaintiff. The defendants assign error on the overruling of their pleas in abatement, motion for new trial, and motion for judgment notwithstanding the verdict.
Herbert R. Edmondson, Gainesville, for plaintiffs in error.
Martin, Snow, Grant & Napier, T. Baldwin Martin, Macon, for defendant in error.
1. Prior to the commencement of this action, Daniel had filed a suit against Edmondson in which he alleged that Edmondson had breached his agreement to install the plumbing and heating in the Baxley and Glennville armories as well as a contract relating to the Sparta armory, as a result of which the plaintiff was entitled to recover certain sums paid the subcontractor, the latter having failed to pay materialmen furnishing articles going into the construction of the building. The plaintiff prayed for an order requiring such materialmen, including Dixie Plumbing Supply Co., the plaintiff here, to intervene and prove the amount of their claims. The court granted a rule nisi. The final disposition of the case is not shown. Daniel now contends by way of plea in abatement that Dixie Plumbing is not entitled to pursue the present action because of Daniel's pending suit. The plea was properly overruled. It is obvious that Daniel in his own case seeks intervention by other alleged creditors simply for the purpose of proving his claim against Edmondson, and it does not appear that a prosecution of that case will result in any judgment which Dixie can levy against Edmondson. The plea of lis pendens lies where a plaintiff attempts to prosecute tho actions at the same time against the same party on the same cause of action. Code § 3-601. Daniel in his suit seeks no relief against Dixie and Dixie seeks no affirmative relief against Edmondson and the former action shows no cause for abating the latter. Ashcraft v. Marsh, 81 Ga.App. 466(2), 59 S.E.2d 333.
2. When Carroll Daniel Construction Co. entered into contracts with the State of Georgia to construct armories at Glennville, Baxley and Sparta, Ga., he contracted with Sam Edmondson, d/b/a Bibb Plumbing & Heating Co., to install various components. Bibb subcontracted with Dixie Plumbing Supply Co. for the purchase of materials on all projects, and Dixie on order delivered materials under invoices, some of which were marked: 'Ship to % Carroll Daniel Constr., Natl. Guard Armory, Baxley, Ga.' with corresponding directions for the Glennville Armory. Stroberg of Dixie Plumbing testified that the shipping instructions were placed on the invoices by his staff from information received with the orders, that the materials were delivered accordingly and receipts were signed by the purchaser when they reached the job; that he was satisfied the invoices correctly showed the disposition of the materials but that neither he nor anyone else could swear positively that each separate article was used at the address to which it was sent, although 'we could go to the job and put our finger on every bit of it and tell except what is under the concrete and if you want to dig that up we will find that.' Edmondson of Bibb Plumbing further swore that he checked the invoices and they were correct, although, 'technically, I would not swear that every nipple or 10cents item went in there, no', but that he ordered the material for each separate job as he needed it, checked the invoices every time he got them, and could not find any mistakes. Daniel, also, had accepted the invoices as correct and had, prior to this action, written Bibb Plumbing Co. enclosing a statement of account which showed the amounts owing by Bibb to various materialmen on each job, the amounts owing to Dixie Plumbing being allocated between the three construction sites in the same manner shown on the invoices. From the rationale of Guthrie v. Berrien Products Co., 91 Ga.App. 45, 84 S.E.2d 596 and Saye v. Athens Lumber Co., 94 Ga.App. 118, 93 S.E.2d 806, with special reference in the latter case to the special concurrence of Judge Quillian, the conclusion may be drawn that, where invoices or delivery slips are offered in evidence from a proper source and there is testimony that the materials were delivered to the addresses shown thereon, in the absence of any indication that they were not delivered or were delivered elsewhere, the court may from all the circumstances of the case find that the records were made in the regular course of business and that it was the regular course of such business to make such records or memoranda, so as to entitle them to be admitted in evidence under Code Ann. § 38-711 even though the source of the information placed on the invoices by the witness' clerks could not positively be testified to by him, as in such a case lack of personal knowledge may effect the weight but not the admissibility of the documents. The invoices were not inadmissible for any reason assigned.
3. The trial...
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