Fletcher Emerson Management Co. v. Davis

• Decision Date: 01 May 1975
• Docket Number: No. 50515,No. 2,50515,2
• Citation: 215 S.E.2d 725,134 Ga.App. 699
• Parties: FLETCHER EMERSON MANAGEMENT COMPANY v. Julian W. DAVIS
• Court: Georgia Court of Appeals

Page 725

215 S.E.2d 725

134 Ga.App. 699

FLETCHER EMERSON MANAGEMENT COMPANY v. Julian W. DAVIS.

No. 50515.

Court of Appeals of Georgia, Division No. 2.

May 1, 1975.

Jones, Bird & Howell, Arthur Howell, III, Atlanta, for appellant.

Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, William G. McDaniel, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Defendant appeals from an order of the trial court granting a motion for summary judgment in favor of plaintiff. Plaintiff solicited the Fletcher Emerson Management Company of Atlanta and Houston, Texas, for a contract to landscape 'Emerson Center' in Atlanta. Plaintiff's second request was approved by John Moore, vice-president of defendant, with directions to 'Ship to Fletcher Emerson Management Company . . . TO BE USED FOR EMERSON CENTER.' Business was conducted on an open account method, with a total amount being due of $37,683.44. All but $11,795.43 has been paid by defendant. On May 20, 1974, Mr. Roland Burrows, president of Fletcher Emrson Management Company, forwarded a letter from Houston, Texas, to plaintiff that 'Fletcher Emerson Management Company will not be responsible for any further purchases for Emerson Center. All invoices in the future should be made in favor of Atlanta Venture No. 1 . . .' Plaintiff alleged in his complaint that he had fulfilled performance of his contract with defendant prior to receipt of this letter and that prior to its receipt he had no knowledge of the existence of Atlanta Venture No. 1, nor did plaintiff have any knowledge that defendant was acting on behalf of Atlanta Venture No. 1. Pliantiff moved for summary judgment and filed two affidavits in support of his complaint which denied knowledge of the claimed agency of the defendant. Defendant countered with the affidavit of John E. Moore, which stated in pertinent part that 'It was my policy and practice to explain to any party coming into business . . . with Defendant . . . that Defendant FLETCHER EMERSON MANAGEMENT COMPANY was a property management agency which managed property and acted as agent on behalf of property owners and that as to the Emerson Center, defendant was not the owner but, as evidenced by its name, was acting on behalf of the owners of Emerson Center as the management company retained by the ownership group . . . I have no recollection of departing from this practice and procedure in regards to Plaintiff and I would recall any such departure.' The trial court granted summary judgment for plaintiff.

1. Defendant denies responsibility for the balance due on the open account on the basis that it was an agent acting on behalf of a principal-Atlanta Venture No. 1. It is well established law that if an agent wishes to avoid personal liability on a contract, the duty in on him to disclose his agency and not on the party with whom he is dealing to discover the agency. Clonts v. Associated Dist., Inc., 132 Ga.App. 558, 208 S.E.2d 570. Whether or not the fact of the agency and identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. Chambliss v. Hall, 113 Ga.App. 96, 147 S.E.2d 334. The fact that the agent uses a trade name is one factor to be considered. Defendant's trade name does indicate that it is a 'management company.' A trade name may be used under such circumstances that agency may be sufficiently disclosed. Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga.App. 300, 303, 145 S.E.2d 294; Chambliss v. Hall, supra, 113 Ga.App. p. 100, 147 S.E.2d 334.

2. The affidavit of Mr. Moore included a statement regarding his 'policy and practice' to disclose his agency and identify his principal when dealing with other parties. This is circumstantial evidence of disclosure of his agency. Although a witness may have no distinct or independent recollection of the details of a fact occurring in the course of the routine of his business, he may testify as to his fixed and uniform habit in such cases and state that he knows that he did not vary from that habit. Leonard v. Mixon, 96 Ga. 239, 23 S.E. 80; Interstate Life & Accident Ins. Co. v. Whitlock, 112 Ga.App. 212, 144 S.E.2d 532. The probative value of such evidence is for the jury to determine. Daniel v. State, 130 Ga.App. 548, 549-550, 203 S.E.2d 736; Leonard v. Mixon, supra, 96 Ga. p. 241, 23 S.E. 80.

3. The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can look only to ascertain if there is an issue. Bagley v. Firestone Tire & Rubber Co., 104 Ga.App. 736, 123 S.E.2d 179; 3 Barron & Holtzoff, Fed.Prac. & Proc., 96, § 1231. The movant has the burden of showing the absence of any genuine issue of material facts. Raven v. Dodd's Auto Sales & Service, Inc., 117 Ga.App. 416, 160 S.E.2d 633. In the instant case,...