Parker v. Rexall Drug Co., 49166

• Decision Date: 30 May 1974
• Docket Number: No. 49166,No. 3,49166,3
• Citation: 132 Ga.App. 32,207 S.E.2d 617
• Parties: Betty PARKER v. REXALL DRUG COMPANY et al
• Court: Georgia Court of Appeals

Page 617

207 S.E.2d 617

132 Ga.App. 32

Betty PARKER v. REXALL DRUG COMPANY et al.

No. 49166.

Court of Appeals of Georgia, Division No. 3.

May 30, 1974.

Pierce, Ranitz, Berry, Mahoney & Forbes, Morton G. Forbes, Savannah, for appellant.

Syllabus Opinion by the Court

PANNELL, Judge.

This case arose from an indebtedness on an open account for $4,664.28, allegedly due and owing by appellant to appellee, Rexall Drug Company. Appellant denied the indebtedness, admitting only that she was indebted to appellee in the sum of $21.63 for merchandise shipped to her subsequent to February 17, 1972, when she took over the business pursuant to the terms of a decree of divorce obtained by D. H. Parker. Motions for a directed verdict at the conclusion of the appellee's case and at the close of all the testimony were denied. The jury found for the plaintiff in the entire amount and ordered the debt to be paid by Mrs. Parker. An amended alternative motion for judgment notwithstanding the verdict or new trial also was denied and appeal followed.

In April of 1961, Mr. Parker entered into a franchise agreement with Rexall Drug Company. In August, 1966 he gave his wife a special power-of-attorney to operate the drug store and took no further part in its business and managerial operations to include transactions with Rexall Drug Company. Business licenses for Sylvania, Georgia, for the years 1970 and 1971, and federal income tax returns reflected that Mr. Parker was the owner of Parker Rexall Drug Store. Mr. Parker conceded that his wife operated the drug store for him. A proposed change to the franchise agreement dated November 14, 1968, to change ownership from Mr. Parker to Mr. Parker and Mrs. Parker, jointly, was never executed. On September 15, 1970, Mr. Parker executed a security agreement to Solomons Company to secure payments under a promissory note in the amount of $19,280.69, with collateral including all the personal property including furniture, fixtures, equipment, inventory of stock of goods, wares and merchandise of Parker Drug Company. This transaction apparently was unknown either to Mrs. Parker or to Rexall Drug Company. On February 17, 1972, Mr. Parker was granted a decree of divorce from Mrs. Parker, which awarded, inter alia, Parker Drug Store to Mrs. Parker, subject to certain outstanding obligations growing out of the business. On October 11, 1972, Solomons Company filed notice of application for quick order of sale, which was approved October 16, 1972 by the Superior Court of Screven County and the collateral presumably sold. The complaint in the instant case was filed October 12, 1972. Held:

In enumerations of error 6 and 7, appellant complains that the trial court erred in refusing to grant the motions for a directed verdict, alleging a lack of proof that Mrs. Parker, the appellant, had assumed the debts of her former spouse.

The judgment and decree of divorce awarding the drug store to Mrs. Parker provided, in pertinent part, 'Defendant shall take subject to all outstanding obligations growing out of said business, with the exception of one note to plaintiff's mother in the principal sum of approximately $3,000, which shall be assumed by plaintiff, defendant being responsible for the obligation and note due and payable to her mother.' (Emphasis supplied.) We do not believe that as a matter of law that the emphasized language, id., creates a personal obligation. Initially, it is apparent that the divorce court clearly specified the outstanding obligations that the individual parties were expected to personally assume and to be responsible for, i.e., payment of the two notes to...