Dinkler Management Corp. v. Stein, 42664

• Decision Date: 18 April 1967
• Docket Number: No. 42664,No. 2,42664,2
• Citation: 115 Ga.App. 586,155 S.E.2d 442
• Parties: DINKLER MANAGEMENT CORPORATION v. Jack C. STEIN et al
• Court: Georgia Court of Appeals

Page 442

155 S.E.2d 442

115 Ga.App. 586

DINKLER MANAGEMENT CORPORATION v. Jack C. STEIN et al.

No. 42664.

Court of Appeals of Georgia, Division No. 2.

April 18, 1967.

Syllabus by the Court

The evidence authorized the verdict for the plaintiffs and the trial judge did not err in entering judgment accordingly, and in overruling a motion for a new trial.

This is an action on an open account by Jack C. Stein et al., d/b/a The Stein Printing Company, a partnership, against the Dinkler Management Corporation, for the printing of various menus for use by the Lucayan Beach Hotel in the Grand Bahamas.

At the outset the parties stipulated that no issue existed as to the amount due, and that '(t)he only matter that creates a question of fact is whether or not the work was done for the defendant * * * or for a third party.' Counsel also agreed to a substitution of the Dinkler Management Corporation in lieu of the original defendant, the Dinkler Hotel Corporation of Georgia.

Roy Kaye, a salesman for the plaintiffs, testified that during the early part of October, 1964, he dealt on one or two occasions with Joseph Storino, food and beverage manager of the Dinkler (Plaza) Hotel in Atlanta, who informed him that he was preparing menus for the Lucayan Beach Hotel, and that subsequently Carling Dinkler, Jr., president of the hotel, and another, the plaintiffs' creative art director, joined them to work out details. Except as stated, he was not informed that he was doing work for the Lucayan Beach Hotel, and in his conversations with Mr. Storino he never inquired as to which corporation to invoice, or for which corporation the work was being done. Having been called to the hotel in Atlanta, and having dealt with officials there, he assumed that Dinkler would be responsible. The witness identified three menu cards printed for use by the Lucayan Beach Hotel as a result of these conferences. On one of these cards, the notation, 'A Dinkler Operation,' appears, and on the other two the notation, 'A Dinkler Hotel Operation,' appears. The name 'Lucayan Beach Hotel' appears only on one of the cards. This witness did not recall whether Mr. Storino told him to include an invoice with the shipment, but if he had told him this, the witness would have questioned it, because his company did not deal with foreign organizations. There was a discussion about shipment to some place in Miami, and when the shipment was ready Mr. Storino outlined to him a shipment to Miami for further shipment to Lucayan Beach, and he furnished the information to the delivery department. Mr. Storino did tell this witness that a duplicate copy of the invoice had to accompany the menu cards, in order to clear customs, but he did not state whose name should appear on the invoice. The witness did not remember but imagined that he, and not Mr. Storino, was responsible for the Lucayan Beach name appearing on the invoice. Having heard Mr. Storino testify, infra, he reiterated that Mr. Storino never told him not to bill any of the Dinkler corporations. His recollection as to when any invoice was mailed directly to the Lucayan Beach Hotel was that it was after collection was not effected through Dinkler.

Cecil G. Reid, plaintiffs' controller, testified that the work was completed on December 11, 1964, and that he sent invoices to Dinkler in Atlanta in December, 1964, and January and February, 1965, and that after receiving a telephone call on March 30, 1965, from someone purporting to represent Dinkler, he sent a number of monthly statements to the Lucayan Beach Hotel. He could not state whether an invoice addressed to the Lucayan Beach Hotel, Freeport, Grand Bahamas, dated December 11, 1964, and marked as a duplicate invoice, was included with the menu cards which were shipped there in December, 1964. He identified another invoice as one he caused to be issued on March 30, 1965, to the Lucayan Beach Hotel, with a covering letter seeking payment, after receiving the telephone call from someone at Dinkler. On the same date he issued a credit memorandum to Dinkler. After this he made a series of telephone calls to the Lucayan Beach Hotel in an effort to collect the account, but stopped without instituting legal action in the Bahamas after being informed that the hotel was under a new management.

John Willis Moore, Jr., sales manager for the plaintiffs, and a partner, approved credit for the account based on information he obtained from Roy Kaye, which led him to believe he was dealing with the hotel in Atlanta. He had a policy of not approving credit transactions outside of the United States and of not doing business with anyone in southern Florida or the Caribbean because of past credit problems. If there was any inquiry by Stein as to responsibility when the order was placed, it was made by Mr. Kaye. This witness was not aware of the Dinkler corporate structure.

Joseph S. Storino identified himself as a vice president and director of food and beverages for the Dinkler Hotel Corporation in 1964, one of three Dinkler corporations. One of his responsibilities was purchasing menu cards for Dinkler operations all over the country and the Lucayan Beach Hotel in the Bahamas. Out of 54 hotels there were only ten or twelve which had food operations. Many had food facilities leased to others and he had no responsibilities with respect to these operations. The Dinkler Management Corporation managed the Lucayan Beach Hotel. He recalled his conferences with Mr. Kaye concerning the menu cards. He instructed Mr. Kaye to ship the menus to the Lucayan Beach Hotel and to include an...