Phillips v. Lindsey, (No. 14937.)

• Decision Date: 10 December 1923
• Docket Number: (No. 14937.)
• Citation: 120 S.E. 923,31 Ga.App. 479
• Parties: PHILLIPS . v. LINDSEY.
• Court: Georgia Court of Appeals

31 Ga.App. 479

120 S.E. 923

PHILLIPS .

v.LINDSEY.

(No. 14937.)

Court of Appeals of Georgia, Division No. 2.

Dec. 10, 1923.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by G. C. Phillips against E. E. Lindsey. Judgment for defendant, and plaintiff brings error. Reversed.

G. C. Phillips brought a suit against E. E. Lindsey for the recovery of one-half of designated commissions which the plaintiff alleged that he had earned under an agreement with the defendant to find a purchaser for a Packard automobile as to which the defendant was a dealer or agent. The plaintiff alleged that he procured a customer who bought the automobile for the sum of $2,-600 in cash and "the exchange of an old car to the defendant at a valuation of $600." The defendant answered with a general denial of the plaintiff's allegations.

The plaintiff testified upon the trial to the making of the agreement as alleged in his petition, and that he had procured a purchaser for the car in the person of a Mrs. O'Neill. He testified further:

"I handled the whole thing, and I explained the Packard car to her, told her I thought it was all right, and she gave me that afternoon a check for $2,600, and gave us a secondhand car at $600. I called Mr. Lindsey when she came back and asked him if he would take in the secondhand car at that price, and he agreed to it, and I then delivered him the check. It was about 10 days before he delivered her the car; in fact, he sold three cars from demonstrating that one. He has never paid me my commission. He said he was receiving 15 per cent, commissions. I asked him for the commission. He said first he was going to pay me when he sold this car, and I says, 'All right': and it went on about 60 days, and I made demand on him and he says, 'You ought to give me that prospect;' and I told him I wasn't doing business that way. Mr. Lindsey offered verbally to go fifty-fifty out the 15 per cent. commission he was to receive. The car was to be sold for cash. It was not sold for cash, but he knew it was not; he agreed to take the old car in. The old car was discussed. We agreed on its value after Mrs. O'Neill came to my office. It is not true that the whole transaction was to be handled on a cash basis, and that I went back to Mr. Lindsey with the proposition of taking over this car at $600, and he told me he wouldn't do it. I offered to take the new car at cost plus $100, and take in the old car, but didn't have the cash at that time to handle the old ear, but I could if he would take my note. He did not agree to handle my note, and I says, 'Well, you go ahead and sell it, and if there is any loss I will bear my part;' and it rocked on and he sold it. I mean to say that Mrs. O'Neill gave her cheek while the car was in Atlanta some 10 days before its delivery. The car was not in Rome at that time."

"I had that check payable to Mr. Lindsey, and I handed it to him myself. This proposition of sale, this secondhand car was an after-consideration; he had already agreed to accept it at $600. Mr. Lindsey didn't pay me anything for me to agree to share a part of the loss in this secondhand car. There was no consideration offered me by him for that— to share the loss in this secondhand car. When he came and offered me the ear and me pay him $100, I didn't have the money, and I says, 'All right; you sell it, and whatever you sell it for I'll lose my pro rata.' In other words, I wiped out the old contract and made a new trade, but nothing was given me to let the new trade take the place of the old trade."

No other testimony was given. The court directed a verdict for the defendant, and the plaintiff has excepted.

Harris & Harris, of Rome, for plaintiff in error.

Denny & Wright, of Rome, for defendant in error.

BELL, J. (after stating the facts as above). 1. It is insisted on the part of the plaintiff in error that in no event should a verdict have been directed for the defendant, but that, if the plaintiff did not prove his case as laid, a nonsuit would have been the proper disposition of the case. It is maintained further, however, that the evidence would have authorized a recovery, and that the case should have been submitted to a jury. On the other hand, it is contended by the defendant in error that, the plaintiff having failed to show whether a loss was sustained by the defendant in the sale of the secondhand car, no basis for a recovery was established in the proof, and that under the evidence adduced the verdict was properly directed for the defendant.

We are satisfied that the plaintiff did not disprove his case. If he merely failed to prove it the court should have granted a nonsuit instead of directing a verdict. But was the plaintiff entitled to go to the jury at all? The defendant in error insists that the evidence of the plaintiff is equivocal and uncertain, and should be construed most strongly against him in reference to the time of the making of the agreement whereby he would share his part of the loss, presumably an equal part, sustained in the sale of the secondhand car, and that when the evidence is so construed it would appear that this agreement was entered into before the new car was sold, and was therefore a part of the original contract for a division of commissions. Assuming that this contention is well founded, we are nevertheless of the opinion that the plaintiff sufficiently carried the burden of evidence to avoid a nonsuit or other adverse direction by the court as a matter of...