Massachusetts Bonding & Ins. Co. v. Bins & Equipment Co.
| Decision Date | 23 November 1959 |
| Docket Number | 2,No. 37806,Nos. 1,37806,s. 1 |
| Citation | 112 S.E.2d 626,100 Ga.App. 847 |
| Parties | MASSACHUSETTS BONDING & INSURANCE CO. v. BINS & EQUIPMENT CO., Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where a motion for judgment non obstante veredicto is denied an appellate court must affirm the trial court if there is any issue to be submitted to the jury and any evidence to sustain the verdict.
Bins & Equipment Co., Inc., originally filed this suit in the Civil Court of Fulton County on the bond of Massachusetts Bonding & Insurance Company as surety for J. T. Bryan, Jr., d/b/a Bryan Construction Company. The action was to recover a contract price for goods furnished Bryan Construction Company where the latter was constructing certain facilities for the Jekyll Island Park Authority. Bins & Equipment Company, Inc., alleged that it submitted a bid to Bryan Construction Company and said bid was accepted; that all obligations were performed by Bins & Equipment Company, Inc.; that there remains unpaid to Bins & Equipment Company, Inc., $4800, and judgment is prayed for in that amount.
The defendant answered with a general denial and further answered that Bine & Equipment Company, Inc., had not complied with the performance of the contract in that Bins & Equipment Company, Inc., was to furnish certain lockers and benches for two bathhouses instead of one.
The case came on for trial in regular order before a jury and a verdict was rendered in the plaintiff's favor for $3600 principal and $231 interest.
The evidence showed that Bins & Equipment Company, Inc., furnished lockers for one bathhouse while Bryan Construction Company, insisted the contract was to furnish lockers for two bathhouses. Shortly before Bins & Equipment Company, Inc., submitted their bid to furnish 1074 lockers, the architect added an 'addenda' to the drawings and specifications showing that two bathhouses were to be constructed. A custom was shown among the building trade that all changes to architects drawings or specifications would be posted in the architect's office, and that potential bidders would check these documents to correct their bids. There was no evidence that Larry Newberger, the vicepresident of Bins & Equipment Company, Inc., ever saw the 'addenda' changing the architect's drawings to show that two bathhouses were to be built. A bid was prepared by the vice-president and submitted to Bryan Construction Company on behalf of the plaintiff as follows:
'Bryan Construction Company
P. O. Box 533
Saint Simons Island, Georgia
Attention: Mr. Bryan
9/11/57
New Bathhouses at Jekyll Island
We propose to furnish the equipment specified below:
Quantity Description Price. Total
We wish to quote as follows
on Interior Steel Equipment
Company lockers required
for the above job
954 Box lockers, 12 x 15 x 12
single row, 6 high, having
sloping tops and no legs.
120 Same as above, double row.
--------
1074 Each of the above to include
corner filler panels, false
fronts (at pilaster) necessary
filler panel between rear of
locker and walls, also
front edges where lockers
abut walls and continuous
strip between the sloping top
and walls.
Grooved key special locks
having key stop and keys
stamped with corresponding
numbers from one up in
each room; 6 master keys.
Color: Interior #28 gray
All of the above for the sum
of ---------------------------- $4952.00
Deducted from our
quotation by agreement
with contractor prior
to receiving order 152.00
--------
4800.00
plus any applicable sales tax.'
Bins & Equipment Company, Inc., received a telegram as follows:
The purchase order received was as follows:
'To Bins & Equipment Co., Inc.
Address 1918 Buford Highway, N.E.
City Atlanta
State Ga
Ship to Bryan Construction Co.
Two bathouses Jekyll Island Ga.
Date 11/14/57
Ship
Via f.o.b. Brunswick trucks
Bins & Equipment Company, Inc., delivered the lockers to Bryan Construction Company who stored them until the buildings were finished and then installed the lockers in one bathhouse and then made demand on Bins & Equipment Company, Inc., to furnish lockers for the second bathhouse. This demand was refused as Bins & Equipment Co., Inc., asserted they had furnished lockers in compliance with their bid.
T. J. Long, Ben Weinberg, Jr., Atlanta, W. A. Wraggs, Brunswick, for plaintiff in error.
A. Tate Conyers, Carpenter, Karp & Matthews, Ben J. Camp, Atlanta, for defendant in error.
The sole question to be determined is whether there is any evidence to sustain the verdict. While the evidence was in sharp conflict, the jury was authorized to find that Bins & Equipment Company, Inc., submitted a bid for a certain number of lockers, which was accepted by Bryan Construction Company. Construing the material instrunments together (bid, telegram, and purchase order), the plaintiff clearly showed that it was offering for sale. The president later modified the bid to offer the 1074 lockers for $4800. There was evidence that other suppliers bid $3871.77 for the same number of lockers, however, their lockers did not meet the technical specifications. The jury may well have believed that it is improbable that one would supply twice the number of lockers for the same price. The plaintiff's bid shows 'bathhouses' which might be indicia that the plaintiff was only bidding for a portion of the lockers.
There was testimony introduced by Mr. Widener, an agent of Bryan Construction Company, that he telephoned Mr. Larry Newberger, vice-president of Bins & Equipment Company, Inc., advising him that two bathhouses were to be built. This testimony was to show a modification of the original bill to call for 2148 lockers instead of 1074. There was no objection to this testimony and the evidence disclosed Widener's negotiations were with Larry Newberger, vice-president of Bins & Equipment Company, Inc., who was deceased at the time of the trial. This testimony by an agent of the defendant concerning words of a deceased officer of the plaintiff corporation was not admissible. Code § 38-1603. This was a conversation with a deceased officer of the corporation and was without probative force. It was held in Dye v. Richards, 210 Ga. 601, 604, 81 S.E.2d 820, 823; Disregarding the testimony concerning the telephone call the jury could have believed that the plaintiff's bid was for only a certain number...
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