Hines v. Good Housekeeping Shop, 62523

• Court: United States Court of Appeals (Georgia)
• Citation: 291 S.E.2d 238,161 Ga.App. 318
• Docket Number: No. 62523,62523
• Parties: HINES v. GOOD HOUSEKEEPING SHOP.
• Decision Date: 07 January 1982

Page 238

291 S.E.2d 238 161 Ga.App. 318 HINES
v.
GOOD HOUSEKEEPING SHOP. No. 62523. Court of Appeals of Georgia. Jan. 7, 1982.
Rehearings Denied Feb. 18, 1982.
Certiorari Denied April 8, 1982.

Page 239

[161 Ga.App. 324] Ralph S. Goldberg, Atlanta, for appellant.

John Genins, Atlanta, for appellee.

Page 240

[161 Ga.App. 318] CARLEY, Judge.

This case makes its third appearance before this court. The instant appeal is from the judgment entered on the verdict rendered at the trial necessitated by the decision in Good Housekeeping Shops v. Hines, 150 Ga.App. 240, 257 S.E.2d 205 (1979). The verdict found in favor of plaintiff-appellee Good Housekeeping Shop and the judgment entered thereon was in an amount reduced by defendant-appellant's recovery on her Truth In Lending counterclaim. Good Housekeeping Shop v. Hines, 146 Ga.App. 713, 247 S.E.2d 142 (1978), overruled on other grounds, First Citizens Bank &c. Co. v. Owings, 151 Ga.App. 389, 259 S.E.2d 747 (1979).

1. It was not error to allow appellee to amend its complaint to allege its corporate character. " 'Where the name does not import a legal entity, but in fact it is a corporation, such defect may be cured by an amendment alleging the corporate character. [Cit.]' [Cit.]" Russell v. O'Donnell, 132 Ga.App. 294, 296, 208 S.E.2d 107 (1974).

2. Before trial, appellee had filed a subpoena to require appellant's production of certain documentary evidence at trial. It was not error to deny appellant's motion to quash this subpoena, which was made orally and during trial. Code Ann. § 38-801(b)(1) provides that a subpoena for production of documentary evidence may be quashed, "upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith ..." (Emphasis supplied.) Nor will appellant now be heard to complain that the "irrelevant" subpoena was itself introduced into evidence, there being no sufficient objection raised at trial when it was offered. See Ball v. State, 145 Ga.App. 254, 243 S.E.2d 672 (1970). Nor can appellant now predicate an enumeration of error upon the trial court's giving of a charge on Code Ann. § 38-119, no objection having been made below. Code Ann. § 70-207(a).

3. It is urged that the trial court erroneously allowed appellee to cross-examine appellant concerning her conduct "subsequent to the signing of the contract in that such evidence was irrelevant."

We have considered the instances in which appellant contends that "irrelevant" evidence was admitted over objection. It appears that the evidence was apparently "relevant" to appellee's fraud count and the issue of appellant's "bad faith." " 'While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when the misrepresentation is made, the defendant knows that the future [161 Ga.App. 319] event will not take place.' [Cits.]" McCravy v. McCravy, 244 Ga. 336, 337, 260 S.E.2d 52 (1979). With regard to a party's "guilty knowledge," "[t]he circumstances, the time, the secrecy, all the transactions before, at the time and afterwards, may be brought to bear upon what was the knowledge ..." Birdsong v. State, 120 Ga. 850, 853, 48 S.E. 329 (1904).

In the instant case appellant testified that at the time she entered into the contract she "had intentions of paying [appellee]--I just couldn't get a job." It is apparent the questioning concerning appellant's conduct "subsequent to the signing of the contract" was part of a thorough and sifting cross-examination concerning her "intentions" of paying appellee. Under the circumstances we find no reversible error in permitting appellant to be cross-examined concerning her conduct subsequent to entering into the contract with appellee.

4. Appellant enumerates as error the admission into evidence over objection "as just being irrelevant" of certain documentary evidence. " ' "An objection (to evidence) on the sole ground that it is irrelevant is not such an objection as would be reversible error to overrule." (Cits.)' [Cit.]" Housing Authority of Atlanta v. Starcher, 149 Ga.App. 402(2), 254 S.E.2d 515 (1979).

5. It was not error to admit four ledger cards into evidence when appellee's

Page 241

witness testified that they were kept "[i]n the normal course of business under my direction." See generally F. N. Roberts Corp. v. Southern Bell Tel. &c. Co., 132 Ga.App. 800, 801(1), 209 S.E.2d 138 (1974). " 'It is not necessary that a witness identifying business records under Code Ann. § 38-711 have personal knowledge of the correctness of the records or have actually made the entries himself.' [Cit.]" Whittington v. State, 155 Ga.App. 667(2), 272 S.E.2d 532 (1980).

6. Appellant next asserts that the verdict and judgment are erroneous because "[t]here was no evidence showing a bona fide error defense to violations of the Michigan Retail Installment Contract [Act]." Appellant had pled the Michigan Act as a defense to the action, apparently relying upon the following provision: "Any seller who enters into any contract or agreement which does not comply with the provisions of this act or who violates any provision of this act except as a result of accidental or bona fide error is barred from the recovery of any time price differential, any official fees, delinquency or collection charge, attorney fees or court costs and the buyer shall be entitled to recover his reasonable attorney fees and court costs from the seller or his assigns ..." Michigan Statutes Ann. § 19.416 [M.C.L.A. § 445.141]. See Good Housekeeping Shops, 150 Ga.App. at 243(3), 257 S.E.2d 205 supra. Thus, in this enumeration of error, appellant apparently contends that she [161 Ga.App. 320] produced evidence of appellee's violation of the Act and that appellee produced no evidence of its "accidental or bona fide error" defense so as to recover any amount other than the principal balance due.

Appellant first asserts that appellee violated the Michigan Act when it "accelerated" the entire unpaid balance due without rebating unearned interest. See Reese v. Termplan, 125 Ga.App. 473, 475(2), 188 S.E.2d 177 (1972) (interpreting analogous Georgia law). However, the contracts did not contain an "acceleration clause." Therefore, even if appellee in fact amended its complaint so as to seek the entire unpaid balance due under the contracts before all the installments were in fact owed (and it is unclear from the record that this occurred), it is apparent that this does not demonstrate a decision on appellee's part to "accelerate" the indebtedness but, at most, an accidental or erroneous conclusion that a cause of action on the entire unpaid indebtedness was mature at the time of the amendment. See generally Nickerson v. Candler Bldg., 156 Ga.App. 396, 399(5), 274 S.E.2d 582 (1980). It is clear that appellee did amend its complaint a second time, in October of 1978, to seek a recovery of the entire unpaid indebtedness at which point appellant was clearly in default of the entire unpaid balance. Accordingly, we cannot hold that it was error to enter judgment for appellee in the full amount of appellant's unpaid indebtedness because of its "acceleration" by appellee. Compare Nickerson, 156 Ga.App. 399(5), 274 S.E.2d 582, supra.

With regard to...