Osburn v. Harbison

Decision Date10 July 1985
Docket NumberNo. 70125,70125
Citation333 S.E.2d 429,175 Ga.App. 397
PartiesOSBURN v. HARBISON, et al.
CourtGeorgia Court of Appeals

Leon A. Wilson II, Waycross, for appellant.

J. Baker McGee, Waycross, John R. Thigpen, Sr., Blackshear, for appellees.


Osburn d/b/a Southern Electric filed suit against Harbison d/b/a A & J Motors and the Blackshear Bank, contending that Harbison contracted for him to build a garage and body shop on a tract of land owned by Harbison and that construction was completed May 25, 1983; that Harbison owed him $169,000 which he has refused to pay; and that Osburn's claim of lien had been filed on August 15. Osburn further alleged that the bank had on May 5 loaned Harbison $75,000 to complete construction and to be used to purchase automobiles in exchange for which Harbison executed a deed to secure debt to the bank conveying the land as security for the debt; that two further loans were made under the open-end clause of the deed to secure debt; and that the bank had actual notice of the construction in progress and of his lien claim so that the latter was superior to the bank's deed to secure debt. Asserting that Harbison and the bank conspired to defeat his lien on the property by arranging to have the loan proceeds paid by Harbison to the bank in liquidation of other debts of Harbison not secured by the land, Osburn sought an injunction to prevent foreclosure of the deed to secure debt, judgment in the amount of $169,000 plus interest and costs, and a declaration that his lien was superior to the bank's deed to secure debt.

Harbison denied that he contracted with Osburn for construction of the building, claiming instead that they were partners in the venture with each providing money and manpower. He denied that he owed Osburn any money or that he conspired with the bank. By counterclaim, Harbison sought judgment against Osburn as his partner in A & J Motors for one-half of the proceeds of the sale by Osburn, without Harbison's authority or consent, of $100,000 worth of used cars belonging to the partnership which Osburn converted to his own use and refused to deliver.

The bank's response, denying that it conspired with anyone, contended that it loaned Harbison the money after examination of the county real estate records upon the strength of its first lien of a deed to secure debt, and that although it knew the construction was in progress, it had no knowledge that Osburn was the contractor but believed he was a co-venturer as partner or otherwise and so was not entitled to any lien. The bank further asserted that Osburn had accepted a warranty deed to an individual interest in the property, expressly subject to the bank's deed to secure debt and, with full knowledge of it, had accepted a deed to secure debt to an individual interest in the property.

The jury verdict found that the bank "has the superior lien," awarded Osburn $40,000 and gave "no dollar amount" to Harbison on his counterclaim for the car sales. When asked by the court, no party had any objection to the form of the verdict. The court's judgment, prepared by the bank's counsel and "approved as to form and content" by all counsel, denied injunctive relief, awarded $40,000 in favor of Osburn and against Harbison, ordered "that the lien of ... Osburn ... as a contractor to the amount of said principal, interest and costs, be set up and established upon" the property subject to the bank's lien, and dismissed Harbison's counterclaim. Osburn filed a motion for new trial on the general grounds, and when it was denied, he appealed, again asserting only the general grounds. Harbison did not file a brief; only the bank did so.

The gist of appellant's argument is that the verdict and judgment in his favor on the contractor's lien demanded a finding that he was not a partner or co-venturer with Harbison, and therefore his lien was superior to the bank's and entitled him to the full $169,000 he claimed. The voluminous trial transcript reveals evidence of a business relationship between appellant and Harbison which was informal, imprecise, and undocumented.

There was no written contract, blueprint, or plans for the construction of the building. It appears rather that plaintiff Osburn dismantled and moved an existing building to the tract of land which land he had sold to Harbison several months earlier for use by A & J Motors, and there reassembled and enlarged the building. While Osburn acknowledged that he had provided $20,000 to Harbison for use in this automobile business, he contended that this was a loan with the agreement that he was to be paid $100 for each car he sold, but there was no written agreement and no provision for collateral. There was also evidence that Osburn had sold at least twenty-six vehicles belonging to A & J Motors for over $50,000 and retained thirteen others. Virtually all of his business was transacted in cash, with no books, accounts, records, invoices or cancelled checks (except one check for $3,500 made payable to cash) to support his claim of $169,000 for the building. Although...

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3 cases
  • Hubbert v. Williams, s. 70098
    • United States
    • Georgia Court of Appeals
    • July 10, 1985
  • Tahamtan v. Tahamtan, A92A0430
    • United States
    • Georgia Court of Appeals
    • June 26, 1992
    ..."The judgment is to be fashioned to conform to the intendment of the jury as it appears from the record. [Cit.]" Osburn v. Harbison, 175 Ga.App. 397, 399, 333 S.E.2d 429 (1985). "In determining whether a judgment conforms to the verdict, the judgment must be construed with reference to the ......
  • Swicegood v. Heardmont Nursing Home, Inc.
    • United States
    • Georgia Court of Appeals
    • June 3, 1987
    ...procured or aided in causing. [Cits.]" Bennett v. Bennett, 210 Ga. 721, 722(2), 82 S.E.2d 653 (1954). Accord Osburn v. Harbison, 175 Ga.App. 397, 400, 333 S.E.2d 429 (1985); Beam v. Fleet Transport Co., 145 Ga.App. 726, 727(2), 244 S.E.2d 582 Judgment affirmed. SOGNIER and BEASLEY, JJ., con......

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