Lansdale Clothes, Inc. v. Wright
| Decision Date | 07 May 1962 |
| Docket Number | No. 21566,21566 |
| Citation | 217 Ga. 817,125 S.E.2d 502 |
| Parties | LANSDALE CLOTHES, INC. v. Homer E. WRIGHT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. While a plaintiff is bound by the allegations in his bill of particulars, yet, if the defendant seeks to set off unlisted credits against the items in the bill, the plaintiff is entitled to rebut such testimony by showing it had already settled or satisfied these credits which are not a part of the claim upon which the plaintiff is suing.
2. Where a defendant admits a prima facie case and assumes the burden of proving a defense thereto but fails to carry such burden, the trial court may properly direct the verdict for the plaintiff; and it was error for the Court of Appeals to reverse that court upon alleged erroneous rulings occurring during the trial where the evidence demanded the verdict.
This case is here by reason of the grant of the writ of certiorari to the Court of Appeals to review its decision in case No. 39124, Wright v. Lansdale Clothes, Inc., 105 Ga.App. 142, 123 S.E.2d 668. The suit involved a bill of particulars upon which certain guarantors in a contract of guaranty were sued for a definite amount after the original debtor had become a bankrupt. On the trial of the case the defendant here admitted a prima facie case, and thereafter attempted to set up evidence to refute the bill of particulars attached to the petition, which listed (1) loans made to the debtor (now bankrupt) in a definite amount; (2) advances of labor costs for goods not delivered involved in the employment contract; and (3) charges for materials made on open account to the debtor. In attempting to set off alleged credits against the bill of particulars the defendant sought to show labor credits which the debtor should have received upon the delivery of goods. In rebuttal, the plaintiff sought to explain when, where, and how previous credits had been made to the account before the final accounting contained in the bill of particulars.
Thereafter the lower court directed the verdict for the plaintiff and denied the defendant Wright's motion for new trial as amended, and the exception in the Court of Appeals was to this final judgment. The Court of Appeals held that the plaintiff could not prove debts not listed on the bill of particulars to off-set credits shown by the evidence and not listed in the bill of particulars without amending the bill to give the guarantors notice of the claims made and an opportunity to fully defend the case. The application for certiorari assigns error on the above ruling and also on the opinion so finding, claiming that the court misconstrued the evidence and overlooked, disregarded, and failed to consider the record in the case, which shows a stipulation of a prima facie case; misconstrued and misapplied certain decisions upon which it based its opinion; and failed to apply the principle of law that where a verdict has or should have been directed because the evidence demanded such verdict there is no issue to present to the jury for determination. The case will be considered upon the assignments of error of the Court of Appeals in its consideration of the case.
John L. Westmoreland, John L. Westmoreland, Jr., Atlanta, for plaintiff in error.
R. F. Duncan, Lawrenceville, for defendant in error.
1. When the defendant admitted a prima facie case this entitled the plaintiff to a verdict for the full amount sued for unless the...
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