Nero v. Moore-Handley, Inc., MOORE-HANDLE

• Decision Date: 09 May 1979
• Docket Number: MOORE-HANDLE,INC
• Citation: 370 So.2d 1043
• Parties: Samuel V. NERO, Individually and d/b/a Nero General Construction Company, and Nero General Construction Co., separately and jointly v., a corporation. Civ. 1693.
• Court: Alabama Court of Civil Appeals

Page 1043

370 So.2d 1043

Samuel V. NERO, Individually and d/b/a Nero General Construction Company, and Nero General Construction Co., separately and jointly v. MOORE-HANDLEY, INC., a corporation.

Civ. 1693.

Court of Civil Appeals of Alabama.

May 9, 1979.

James H. Reid, Jr., Fairhope, for appellant.

Augustine Meaher, III and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for appellee.

BRADLEY, Judge.

Plaintiff, Moore-Handley, Inc., a corporation, recovered a judgment against defendants, Samuel V. Nero, individually and doing business as Nero General Construction Company and Nero General Construction Company, separately and jointly, for $9,233.64 plus costs. Defendants appeal.

On November 30, 1977 plaintiff filed a complaint against defendants which contained three counts. Count One was for an open account between the parties for the period June 8, 1977 through October 28, 1977; Count Two for an account stated between the parties on June 8, 1977; and Count Three for merchandise, goods and chattels sold during the period from June 8, 1977 through October 28, 1977. The complaint was subsequently amended to add a fourth count for hardware and building materials furnished from December 1, 1975 through October 31, 1977. Attached to the complaint was a signed affidavit showing that defendants owed $7,956.03 due on account from June 8, 1977 with interest. The record does not show that a counter affidavit was filed by defendants.

The case was heard by the court sitting without a jury, and a judgment was rendered for plaintiff in the amount of $9,233.64 and costs.

The facts in the case show that defendants had been buying building materials and supplies from plaintiff for several years. Defendants would purchase the materials and supplies on account and would be billed monthly with a total amount owing appearing on each bill. Defendants did not complain to plaintiff that the bills were incorrect.

Defendant Nero admitted he signed the application for credit and the guarantee agreement that were attached to the complaint.

An employee of plaintiff testified that there was an unpaid, outstanding balance owed to plaintiff of $7,733.64 plus interest of at least $1,500.

Nero testified that he had received duplicate billings and that plaintiff was seeking a double recovery in many instances.

This case was tried before the court sitting without a jury. The evidence accepted by the court was developed ore tenus, or partly so, and where this is the case, the trial court's judgment will not be disturbed unless it is contrary to the great weight of the evidence. Deal v. Houston County, 201 Ala. 431, 78 So. 809 (1918). Furthermore, a judgment entered by a court sitting without a jury is to be given the effect of a jury verdict and is not to be reversed on appeal unless plainly and palpably wrong. Thompson v. Mitchell, Ala., 337 So.2d 1317 (1976). In the instant case we do not consider that the trial court's judgment is contrary to the great weight of the evidence, nor do we consider it to be plainly and palpably wrong.

Consequently, we find no merit to defendants' contention that the trial court failed to give weight to evidence that plaintiff was attempting to collect twice from defendants for materials and supplies bought by Nero. The evidence presented a factual dispute for resolution by the trial court, and it resolved the dispute. No error here.

Defendants' next argument concerns their...