Eiberger v. Martel Electronic Sales, Inc., 46720

CourtUnited States Court of Appeals (Georgia)
Citation187 S.E.2d 327,125 Ga.App. 253
Docket NumberNo. 46720,No. 2,46720,2
Decision Date04 January 1972

Moore & Morris, Charles E. Moore, W. Grady Morris, Atlanta, for appellant.

Stone & Stone, Hugh W. Stone, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Martel Electronic Sales, Inc., sued Atlanta Dictating & Business Equipment Company (Horst Eiberger) on open account seeking to recover the sum of $7,393.18. The alleged open account arose out of defendant's purchases, as a dealer of plaintiff, of various electronic recording equipment at wholesale, to be resold by defendant at retail. The defendant denied that he was indebted to plaintiff. In addition, defendant filed a cross action for damages arising out of the alleged breach of an exclusive franchise contract by and between the parties, in which he alleged he had been damaged in the amount of $200,000, for which he seeks judgment. Said contract was attached to the crossaction as Exhibit 'A.' Attention is here called to paragraph 19 of said contract which reads as follows: 'This agreement supersedes and and all prior agreements, understandings, or arrangements, whether oral or written, heretofore made between the parties and relating to the subject matter hereof, and the full understanding of the parties is embraced herein.' A reading of this contract fails to disclose that defendant dealer was given an exclusive handling of the products for any definite area, although the substance of the cross action is based upon letters and documents in which defendant claims that he was made the exclusive agent of plaintiff for the Atlanta area (Fulton and DeKalb Counties).

The case proceeded to trial before a jury which returned a verdict for plaintiff in the sum of $5,000, as to the main action and the court directed a verdict for plaintiff and against defendant on the cross action. The judgment followed the verdict and defendant appeals. The enumeration of errors contains 105 enumerations of alleged error. Held:

1. The court did not err in allowing in evidence the business records of the plaintiff upon their identification by a witness, who also testified that the entries were made in the regular course of business, describing the practice of the company, although he personally did not make them. The proper foundation was laid for the admission of same in evidence, the weight and credit being for jury determination. Allstate Ins. Co. v. Buck, 96 Ga.App. 376, 379, 100 S.E.2d 142; Home Finance Co. v. Smith, 116 Ga.App. 76, 156 S.E.2d 522; Martin v. Baldwin, 215 Ga. 293(4), 110 S.E.2d 344.

2. In all civil cases the jury is required to return a verdict according to the law as given to it in the charge by the court. Code § 59-706; Bank of St. Mary's v. State, 12 Ga. 475, 497; Atlantic & B R Co. v. Bowen, 125 Ga. 460(2), 54 S.E. 105; Council v. Teal, 122 Ga. 61(5), 49 S.E. 806; Livingston v. Taylor, 132 Ga. 1, 5, 63 S.E. 694; Strickland v. State, 209 Ga. 675(2), 75 S.E.2d 6. The court did not err in refusing to send photostatic copies of California appellate court decisions out with the jury.

3. The written contract recited that it superseded any and all prior agreements, understandings or arrangements, whether oral or written, 'heretofore made by the parties and relating to the subject matter hereof,' which rendered all evidence regarding previous agreements, understandings or arrangements completely nugatory. Haley v. Evans, 60 Ga. 157, 159; Bullard v. Brewer, 118 Ga. 918(1), 45 S.E. 711. Hence, the court did not err in disallowing evidence of transactions occurring prior to the execution of the written contract.

4. The counterclaim, with the exhibit of the written contract attached, shows on its face that said written contract superseded any and all prior agreements, understandings and arrangements, whether oral or written, between the parties; hence the lower court did not err in directing a verdict against defendant on said counterclaim. Both the evidence and the pleadings preclude a recovery by the defendant on the counterclaim. See Strickland v. Lowry National Bank, 140 Ga. 653(2), 79 S.E. 539; Vandiver v. Endicott, 215 Ga. 250, 251, 109 S.E.2d 775; Scenic Heights Development Corp. v. Harry, 219 Ga. 253(1), 132 S.E.2d 711.

Since the majority of the specifications of error here are concerned with the counterclaim in regard to the disallowance of evidence, exhibits and rulings thereon as to agency, arising out of the evidence submitted by the defendant, in support of said counterclaim, none of these enumerations of error is meritorious.

5. The contract showing that plaintiff did not give defendant, as a dealer, an exclusive contract for the handling of the products for any definite area, the court did not err in refusing to admit in evidence certain exhibits with reference to sales of products subsequent to the filing of the original complaint, even though defendant contends they were admissible to prove the amount of sales plaintiff had consummated through other representatives in the area where he claimed an exclusive dealership. The contract fails to show an exclusive sale contract between the parties; consequently, the court did not err in excluding any evidence which had for its purpose the proving of plaintiff's breach of contract, and as bearing upon the amount of damages contended for in the counterclaim.

6. Conceding that certain testimony, admitted over objection that it was hearsay, and...

To continue reading

Request your trial
15 cases
  • Interstate Life & Acc. Ins. Co. v. Brown, s. 48702
    • United States
    • United States Court of Appeals (Georgia)
    • January 9, 1974
    ...of the transcript without objection. Smith v. Smith, 125 Ga.App. 257(7), 187 S.E.2d 330; Eiberger v. Martel Electronic Sales, Inc., 125 Ga.App. 253(6), 187 S.E.2d 3. The court erred in authorizing the jury to award attorney fees for bad faith refusal to pay. The evidence was circumstantial ......
  • Dickens v. Adams, s. 51669
    • United States
    • United States Court of Appeals (Georgia)
    • January 27, 1976
    ...again was harmless in view of his prior testimony and that of other witnesses to the same effect. Eiberger v. Martel Electronic Sales, 125 Ga.App. 253, 256(6), 187 S.E.2d 327 and cases cited. 3. The testimony of Dr. Foster, Mrs. Adams' psychiatrist, about conversations he had with her durin......
  • F. N. Roberts Corp. v. Southern Bell Tel. & Tel. Co., 49428
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 1974
    ...an agent or representative of Fred A. York, Inc. does not affect its admissibility. Code Ann. § 38-711; Eiberger v. Martel Electronic, 125 Ga.App. 253(1), 187 S.E.2d 2. Defendant contends the trial court erred in refusing to permit the defendant to introduce certain evidence tending to show......
  • City of Saint Marys v. Stottler Stagg & Associates, Inc., 63444
    • United States
    • United States Court of Appeals (Georgia)
    • June 25, 1982
    ...287; One In All Corp. v. Fulton National Bank, 108 Ga.App. 142(3), 132 S.E.2d 116. See also Eiberger v. Martel Electronic Sales, Inc., 125 Ga.App. 253(1), 187 S.E.2d In the instant case the foundation could probably have been more effectively established by certain routine questions, but th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT