Mississippi Tank Co. v. White, 40372

• Decision Date: 04 November 1963
• Docket Number: No. 40372,No. 1,40372,1
• Citation: 108 Ga.App. 609,134 S.E.2d 66
• Parties: MISSISSIPPI TANK COMPANY, Inc. v. Carl WHITE, d/b/a Dixie Gas Company
• Court: Georgia Court of Appeals

Page 66

134 S.E.2d 66

108 Ga.App. 609

MISSISSIPPI TANK COMPANY, Inc. v. Carl WHITE, d/b/a Dixie Gas Company.

No. 40372.

Court of Appeals of Georgia, Division No. 1.

Nov. 4, 1963.

Syllabus by the Court

1. The denial of a motion for summary judgment is not reviewable. Code Ann. § 110-1208; Macon Auto Auction, Inc. v. Georgia Cas. &c. Co., 104 Ga.App. 245(3), 121 S.E.2d 400.

2. If the evidence presents jury questions on material issues a motion for judgment n. o. v. will not lie.

3. A verdict for the defendant is not authorized if the uncontroverted evidence or admissions disclose that plaintiff was entitled to have a judgment for some amount.

4. Special grounds of a motion for new trial excepting to the admission of evidence must state the objection made thereto at the time it was offered, or must, by reference, point out the place in the record where the objection can be found; otherwise no question is presented for decision.

Mississippi Tank Company, Inc. sued White to recover the price of various propane tanks consigned to White. The action was based on a contract dated November 14, 1958, providing in part: '(2) Customer agrees to remit promptly for each tank or tanks as they are used, sold, leased or moved from Customer's lot. Customer agrees further to remit promptly for any tanks that remain in his possession for a period of twelve months irrespective of whether they have been used, sold, leased or moved. (3) Customer and Manufacturer agree that the price to be charged for all tanks will be the Manufacturer's Consignment price in effect at the time.'

The defenses raised were that the twelve-month provision did not apply to certain tanks delivered before the 1958 contract; that the plaintiff had been requested to pick up all subsequently delivered tanks before the expiration of the twelve-month period but had failed to do so; and, that defendant and plaintiff's agent had entered into a 'new agreement' at the time the Novemver, 1958, contract was signed, which agreement provided that the defendant could return any tanks he did not need. The evidence showed that some of the tanks were delivered to defendant prior to this contract and while the parties were operating under a similar contract which did not contain the payment after twelve months provision. Some of the tanks were delivered after the contract of November 14, 1958. The evidence tended to substantiate all of these defenses, except that, when the plaintiff's driver came to pick up the tanks, he found that at least one of them had been...