Marvin L. Walker & Associates, Inc. v. A. L. Buschman, Inc.
| Decision Date | 02 November 1978 |
| Docket Number | No. 56408,56408 |
| Court | Georgia Court of Appeals |
| Parties | MARVIN L. WALKER & ASSOCIATES, INC. v. A. L. BUSCHMAN, INC. |
Macey & Zusmann, Steven Schaikewitz, George S. Stern, Atlanta, for appellant.
Hansell, Post, Brandon & Dorsey, Paul Oliver, Atlanta, for appellee.
Following a series of telephone conversations regarding purchases and sales between A. L. Buschman, Inc., a New York corporation, the purchaser, who contends it is qualified only to do business in Connecticut, and Marvin L. Walker & Associates, Inc., a Georgia corporation, an employee of Buschman by telephone to a sales person of Walker in Atlanta, Georgia in January of 1977 (according to the sworn testimony of Buschman's president) "ordered certain glass table tops from . . . Walker . . . for the price of $6,120.00." Buschman contends the glassware was to be manufactured in Germany, was in fact shipped from Germany to New York and delivered by Walker's agent to it in New York where a check for the purchase price was delivered to Walker's agent in New York. Walker contends that an employee of Buschman presented the order and was to pay cash "against documents when the goods arrived in New York, New York," and a check in exchange for the documents was given to Walker's broker when the goods arrived in New York. After obtaining the goods, defendant stopped payment on the check. The reason for the stopped payment was never given.
Whereupon Walker sued Buschman in four counts seeking damages in the amount of $6,120 based upon the breach of the contract, nonpayment of an account, the stopping of payment on the negotiable instrument and fraud. In Count 4 (fraud count) it sought damages contending that defendant after ordering the goods from plaintiff, never intended to pay for the glass, the representation being made to induce plaintiff to part with the glass in reliance upon the representation which plaintiff believed to be true and in reliance thereon the glass was shipped in accordance with the terms of the contract. A negotiable check was given and payment stopped thereafter. Service was obtained under the Long Arm Statute.
In its answer defendant denied the allegations of the complaint and set forth lack of jurisdiction over the person and improper venue defenses. The defenses of lack of jurisdiction and improper venue were also raised by motion, based upon affidavits setting forth in general the above facts with reference to the purchase and sale of the goods. The basis of same is that the defendant is a nonresident corporation, has not transacted any business within the State of Georgia and has committed no "tortious act, tortious omission, or tortious injury" within the State of Georgia. Plaintiff also sought evidence by interrogatories with regard to defendant's defense of lack of jurisdiction, and defendant responded to most of the interrogatories but objected to certain questions moving for a protective order concerning the questions to which it objected. Plaintiff responded by affidavit and a hearing followed as to defendant's motion to dismiss and motion for protective order. The trial court dismissed plaintiff's complaint and ruled the motion for protective order was moot, the bases of same being defendant did not transact business in this state and did not commit a tortious act, tortious omission or tortious injury in this state, and plaintiff failed to allege "facts upon which the Court's venue depends." Plaintiff appeals. Held :
1. A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial on the application of any party. See Code Ann. § 81A-112(d) (). At such hearing factual issues shall be determined by the trial court. See Hatcher v. Hatcher, 229 Ga. 249, 250, 190 S.E.2d 533; Watts v. Kegler, 133 Ga.App. 231, 211 S.E.2d 177; Rainwater v. Vazquez, 135 Ga.App. 463, 464(1), 218 S.E.2d 108.
2. Defendant admits its employee called plaintiff in Atlanta by telephone and "ordered certain table tops from . . . (plaintiff) . . . for . . . $6,120.00." Defendant also admits without giving the reason that it stopped payment on the check after receiving the goods and paying for same by issuing "a check in the amount of $6,120.00." The affidavit of plaintiff's employee was that an employee of defendant placed an...
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