Moate v. H. L. Green Co.

• Decision Date: 11 April 1957
• Docket Number: No. 36460,No. 1,36460,1
• Citation: 95 Ga.App. 493,98 S.E.2d 185
• Parties: R. L. MOATE et al. v. H. L. GREEN COMPANY
• Court: Georgia Court of Appeals

Page 185

98 S.E.2d 185

95 Ga.App. 493

R. L. MOATE et al. v. H. L. GREEN COMPANY.

No. 36460.

Court of Appeals of Georgia, Division No. 1.

April 11, 1957.

Syllabus by the Court

1. Where the evidence demands a general verdict in favor of the defendant, and, at the conclusion of the evidence, he makes a motion for directed verdict, the trial judge does not err in granting a motion for judgment notwithstanding the verdict made on the same grounds as was the motion for directed verdict.

2. Judgments rendered at the same term but on different days granting a motion for judgment notwithstanding the verdict and a motion for new trial are considered parts of the same judgment, and the effect of ordering the new trial is not inconsistent with the granting of a motion for judgment notwithstanding the verdict.

Roy L. Moate and Mildred Moate, trading as Moate Produce Company, filed in Bibb Superior Court a suit against H. L. Green Company, a corporation, doing business in Macon, Bibb County, Georgia. The petition alleged that the defendant was indebted to the plaintiff in the principal sum of $2,369.16 on an open account as evidenced by statements annexed to the petition, and that the indebtedness was true, past due and unpaid, and that the defendant failed and refused to pay the same; that the merchandise covered by said indebtedness consisted of produce purchased by Sam Di Nardo, an agent and employee of H. L. Green Company, with the knowledge, consent and approval of H. L. Green Company and with the assurance from H L. Green Company, to the plaintiff, that said indebtedness was that of H. L. Green Company and would be paid.

The defendant's answer denied all material allegations of the petition and also, any indebtedness to the plaintiff, and set up: that the defendant had leased to Sam Di Nardo certain space in its store building, in Macon, Georgia, for the purpose of permitting Sam Di Nardo to operate a fruit and produce business; that the defendant had no interest in said fruit and produce business other than a commission of 8% on the gross sales therefrom, and that in turn the defendant furnished, in addition to space, lights, heat, water, license and other services all covered by the 8%. The defendant further alleged that the plaintiff had never contended that the defendant was indebted to the plaintiff until after Sam Di Nardo filed a voluntary petition in bankruptcy on June 10, 1955, and that the defendant knew nothing of the claim of the plaintiff against Sam Di Nardo until that time, and further also denied promising the plaintiff that it would pay said indebtedness, and that the plaintiff knew that it was dealing with Sam Di Nardo, individually, and not the defendant, H. L. Green Company.

The averments of the sentence were: (a) that the merchandise comprising the items of the account were purchased of the plaintiff partnership by the defendant corporation through its authorized agent, Sam Di Nardo: (b) that the goods were purchased with the consent, knowledge and approval of the defendant; (c) that the defendant assured the plaintiff that the debt incurred by the purchase of the merchandise was its own; (d) that the defendant promised to pay the plaintiff for the goods purchased.

The plaintiff's proof showed that originally Mr. Mark Donner occupied a space in the defendant's store where he conducted a retail produce business. The contract between the defendant and Donner expressly provided that Donner was not to become an employee or partner of the defendant but that the space was to be furnished him and certain services by the defendant's employee were to be performed for him in consideration of Donner paying to the defendant a certain percentage of the profits derived from his business. The contract was entirely private, was in no way publicized, and its contents were known only to Donner and the defendant. Donner's business was advertised in the name of the defendant as a department of its store, and there were other circumstances indicating that Donner was a mere employee of the defendant. When Donner began his occupancy of the part of the store assigned to him by the defendant, the plaintiff partnership was and had for many years previous to that time been engaged in the wholesale produce business. The plaintiff had previously dealt with Donner and he was then indebted to the plaintiff for an old balance on account. When he began operating his business in the defendant's store he approached the plaintiff's salesman, Dixon, and undertook to purchase goods of the plaintiff through him. Dixon testified that he considered Donner a bad credit risk; that he would not consent to sell Donner goods without first obtaining the guarantee of the defendant corporation, then operating under the name 'Silvers,' that the account would be paid.

The witness in part testified:

'Q. You didn't think you were selling Green because if you were selling Green you wouldn't have asked Dave Lipson to guarantee an account with Green Company would you? A. No, I wouldn't ask him to guarantee the account if I had thought I was going to get it, get the money.

'Q. And if you were going to sell to H. L. Green you knew you would get that money didn't you, Mr. Dixon? A. I would think so, yes, sir.

'Q. Yes, sir. You know that is a good concern and perfectly solvent and you would sell H. L. Green Company today $1000 worth of stuff if you had it wouldn't you? A. Yes, sir, I'd sell them----

'Q. You wouldn't go to Dave and say, now I want to know if you are going to personally guarantee I'll get my money out of this account? A. Yes, sir, I would because Mr. Lipson is manager, and unless he guaranteed it I wouldn't sell them.

'Q. I am not talking about what might have happened or what is happening, I am talking about what did happen. This man Donner wanted to buy produce from you didn't he? A. Yes, sir.

'Q. And before you would sell Mark Donner you went to see Dave Lipson and said, now will you guarantee I'll get my money for the stuff I sell Mark Donner? A. Yes, sir, and the H. L. Green, Silvers at that time.

'Q. You didn't say anything about Green, you said, I'll sell Mark Donner didn't you? A. Yes, sir.

'Q. And he said, yes, I'll see that you get your money? A. He guaranteed the account.

'Q. And you got the money? A. Yes, sir.

'Q. You got it in cash? A. Yes, sir.

'Q. And you got it promptly? A. Yes, sir.'

The witness further testified that at two week intervals over a period of two years he presented bills to the defendant for goods delivered to Donner, and on each occasion payment was promptly made.

Mrs. Mildred D. Moate, one of the plaintiff partners, testified that she knew of the arrangements made by her brother with 'Silvers' for the 'delivery of the produce to produce department in Silvers.' The witness further related that when Mark Donner severed his connections with the defendant Sam Di Nardo succeeded him; that she called the defendant's manager, Mr. Lipson, over the phone and asked him if the account would be as it had always been, to which he replied 'that the account was as good as gold.' At another point in her testimony the witness stated that when she phoned Mr. Lipson he agreed with he that the account would be handled 'just like it had been.' Mrs. Moate throughout her testimony professed to believe that the account was that of the defendant, and that the plaintiff was actually selling the merchandise to the defendant and not to Sam Di Nardo. She admitted that subsequent to her conversation with Lipson when Di Nardo succeeded Donner in the defendant's produce department she never had any conversation with a representative of the defendant in reference to the account until Di Nardo went into bankruptcy. She said that sometimes invoices for goods sold were mailed by her to the defendant, but more often they were presented to Di Nardo, and that while she personally mailed the statements to the defendant she did not make out the invoices and did not know in what name they were billed, that is, whether they showed the goods had been charged to the defendant or Di Nardo. She testified that she did the collecting for the plaintiff; that she never personally presented a bill for merchandise to a representative of the defendant, but that on one or two occasions she received the defendant's check in payment of an invoice. On cross-examination she withdrew the statement that any of the invoices had been paid by the defendant's check, and stated that she could not remember whether or not that was true. She was positive that she had never presented an invoice for payment to the defendant, except those mailed to its office; that she had always applied to Di Nardo for payments on the account; and that he had paid her 'right along'. Her testimony in reference to her dealings with Di Nardo was long and somewhat involved. She stated that when she presented bills to him he would tell her that he would go to the office for her money, disappear and later appear with the money. She did not profess to know what arrangements existed between Di Nardo and the defendant in refence to Di Nardo's funds being kept in the defendant's office. Mrs. Moate told of having received checks on the account from Di Nardo, looking to him to make the checks good and of him paying them. She also referred to instances when she had advanced money to him to buy produce from farmers, and of having guaranteed the payment of Di Nardo's personal checks for the farmers. Nowhere in her testimony did she state that either she or the plaintiff acting through any other medium kept the defendant regularly advised of the balance due on the account; or that any of the invoices mailed to the defendant showed the balance. Her testimony was silent as to any assurance given her by the defendant that the indebtedness for the merchandise delivered to Di Nardo was its own, but on the contrary she stated that she sold the merchandise on the faith of the...