Loftin's Rent-All, Inc. v. Universal Petroleum Services, Inc.

• Decision Date: 12 April 1977
• Docket Number: RENT-AL,INC
• Citation: 344 So.2d 781
• Parties: LOFTIN'S, a corporation v. UNIVERSAL PETROLEUM SERVICES, INC. Civ. 1044.
• Court: Alabama Court of Civil Appeals

Page 781

344 So.2d 781

LOFTIN'S RENT-ALL, INC., a corporation v. UNIVERSAL PETROLEUM SERVICES, INC.

Civ. 1044.

Court of Civil Appeals of Alabama.

April 12, 1977.

William M. Jackson, Dothan, for appellant.

None for appellee.

BRADLEY, Judge.

Loftin's Rent-All, Inc., a corporation, filed an action in the Circuit Court of Houston County for goods sold and delivered against Mercer and Company, Inc., David Morris Mercer, individually, and Universal Petroleum Services, Inc. David Morris Mercer was dismissed as a party defendant and a default judgment was rendered against Mercer and Company. A trial before the court without a jury resulted in a judgment in favor of defendant, Universal Petroleum Services, Inc. Loftin's Rent-All appeals.

This is a case of mistaken identity.

Mercer and Company ordered some equipment from Loftin's Rent-All to be used in its contracting business and sought to charge the purchase to its account. Mr. Edward S. Parr, the vice-president and sales manager of Loftin's Rent-All, advised Mr. David Morris Mercer, the president of Mercer and Company, that the company had exceeded its credit limit and that the equipment could not be charged until further credit arrangements were made.

Parr testified that Mercer told him that a management firm, Universal Petroleum Services, Inc., had been retained to manage Mercer and Company and that Mr. Walter L. Johnson of Universal Petroleum Services had been made executive vice-president of Mercer and Company for management purposes; Mercer said that Johnson had completely taken over the day-to-day operation of Mercer and Company and was authorizing all purchases and paying all bills; Mercer also told him to contact Johnson about the purchase of the equipment on credit.

Parr said he called the telephone number given him for Universal Petroleum Services and asked to speak to Mr. Walter L. Johnson. He was connected with a man who said he was Walter L. Johnson and they discussed the Mercer and Company account with Loftin's Rent-All. Mr. Johnson confirmed that he was managing the purchasing and payment of bills for Mercer and Company. Parr testified that on the basis of that telephone conversation and the assurance of Mr. Walter L. Johnson, he extended further credit to Mercer and Company for the purchase of $3,318.89 worth of equipment.

Mr. Mercer said that he told Parr the name of the management firm engaged was Universal Management Consultants, Inc., and that Mr. Walter L. Johnson was its president. When asked whether he had ever dealt with Universal Petroleum Services, Mercer responded that he did not know; the contract was signed with Universal Management Consultants. The agreement between Mercer and Company and Universal Management Consultants showed Universal to be a partnership composed of Walter L. Johnson, Lee W. Johnson, and Bailey Powell.

Mr. Lee W. Johnson, president and chairman of the board of Universal Petroleum Services then testified. He is Walter L. Johnson's brother; Walter did not appear at trial.

Lee W. Johnson said that Universal Petroleum Services is in the business of chartering off-shore drilling rigs. Universal Management Consultants is in the business of assisting business concerns with the planning and management of their operations. Universal Petroleum Services and Universal Management Consultants have the same address as they are located in the same building on the same floor; they do not share offices. They also share the building telephone switchboard.

Universal Petroleum Services and Universal Management Consultants are completely separate entities. There is an interlocking of membership to the extent that, in addition to being president and chairman of directors of Universal Petroleum Services, Lee W. Johnson is a partner in Universal Management Consultants. However, Walter L. Johnson is only a partner in Universal Management Consultants; he has no interest in or control over Universal Petroleum Services. There is no interrelationship between the two businesses; Walter L. Johnson runs the management consultant business exclusively.

Mr. Lee W. Johnson said that Universal Petroleum Services had never extended a guarantee of payment for the debts of Mercer and Company. Furthermore, Universal Management Corporation had agreed only to manage the business of Mercer and Company; at no time had Universal Management Consultants ever extended, or offered to extend, its credit on behalf of the credit of Mercer and Company.

The trial court rendered a judgment in favor of Universal Petroleum Products.

The first issue for review is the trial court's alleged error in excluding evidence of the telephone conversation between Ed Parr of Loftin's Rent-All and a person who was supposed to be Walter Johnson of Universal Petroleum Services. Appellant Loftin's Rent-All argues that evidence of a telephone conversation is admissible where the witness has called a specific telephone number and the person answering says he is the person called, citing Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975); McElroy, Law of Evidence in Alabama 2d, § 329.01.

In Midwestern the witness testified that he called Midwestern Welding Company at the telephone number listed in the directory and talked to a man who identified himself as the purchasing agent for Midwestern Welding. On appeal Midwestern claimed the trial court erred by admitting testimony concerning the telephone conversation. We said that no objection was made to the content of the discussion but only to whether it took place, and that the trial court would not be placed in error unless the matter complained of was called to its attention. We did comment, however, that even had a proper objection been made the trial court was not in error for the conversation was admissible and cited McElroy, Law of Evidence in Alabama 2d, § 329.01, for the proposition that:

'Where the witness has himself called the telephone number of a specific person or business concern as listed in the telephone directory, and the person answering says that he is the person called for, or that he represents the business concern, the identity of the person answering and also his authority to represent the business concern is sufficiently authenticated, even though the caller does not recognize the voice of the person answering the call.'

In the case at bar, Ed Parr, the witness for Loftin's Rent-All, testified that he talked on the telephone to a man who identified himself as Walter Johnson, the person he had been told by David Mercer who represented Universal Petroleum Services. He said his information was that Universal Management Consultants had the same telephone number and office address. Based on our decision in the Midwestern case, we find that the trial court erred in not permitting Parr to relate his conversation with Walter Johnson. The error, however, is harmless.

The rule is that where objection to a question is erroneously sustained, if the same question is again asked and answered without objection the erroneous ruling by the trial court is not reversible error. Mersereau v. Whitesburg Center, Inc., 47 Ala.App. 146, 251 So.2d 765 (1971); Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. den., 287 Ala. 740, 249 So.2d 860 and 287 Ala. 740, 249 So.2d 861 (1971).

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