Pitman v. Dixie Ornamental Iron Co.
| Decision Date | 08 September 1970 |
| Docket Number | No. 45326,No. 2,45326,2 |
| Citation | 122 Ga.App. 404,177 S.E.2d 167 |
| Parties | Ike W. PITMAN v. DIXIE ORNAMENTAL IRON COMPANY |
| Court | Georgia Court of Appeals |
Frank M. Eldridge, Atlanta, for appellant.
Wendell C. Lindsey, Atlanta, for appellee.
Syllabus Opinion by the Court
Dixie Ornamental Iron Company brought an action against Ike W. Pitman seeking recovery for $1,265.82 as an alleged balance due on an account. The account showed five charges, one of which was sales tax, making a total of $3,210.82 and showing two credits, one of $1,500, and one of $445, leaving a balance due of $1,265.82. The sales tax item was $93.33. The other four items were as follows: '200 ft. square picket rail with castings $1,495, 1 pair gates 21 ft. with castings, 450, adding double pickets to fence, 847.50, adding double pickets to gate & castings, 325.' On the trial of the case, a Mr. Hayes, who was president of the plaintiff company testified that he kept all the books and records of the plaintiff, that he was familiar with the account and that the copy of the statement of account attached to the pleadings (described above) was the only record made or kept, that the job was completed and the balance owed was $1,265.42 in one place in this testimony and $1,265 in another place and in another place $1,279 and in another place $1,265.82; that a statement of the account had been mailed to the defendant. Certain checks written by the defendant and payable to the plaintiff were exhibited to the witness, and he testified that all of these checks were endorsed and payment received thereon. These checks totaled the amount of credits shown on the statement attached to the petition. He was unable to say whether the check for $445 exhibited to him was any different from the original. Two of the workmen who put up the fence testified that during the construction and before the fence was completed, the smaller of the two dogs of the defendant got through the fence and that they added extra pickets to those sections already installed and to those subsequently installed. The defendant testified that through Mr. Hayes he had an oral contract with the plaintiff to put up an ornamental iron fence which would keep his two dogs in and that Mr. Hayes stated that he could erect such a fence for the price of $1,945.00. He also testified about the dogs getting through that portion of the fence already constructed and that this was reported to the workmen who saw the smaller dog go through and extra pickets were added to the fence. The defendant further testified that he had torn up and put in the wastebasket the original checks showing payments, but testified that the photostatic copies which he got from the bank were the exact copies of the original checks, and sought to introduce the photostatic copies, as well as a photostatic copy of bank records showing his account, deposits and charges. The last of these checks had written across the face thereof 'iron fence in full.' The trial judge refused to admit them in evidence. Upon the trial of the case before the trial judge without the intervention of a jury, judgment was rendered against the defendant for the principal sum of $1,265.62. He appealed, enumerating as error (a) the entry of judgment in favor of the plaintiff without sufficient evidence, (b) the exclusion from evidence of the photostatic copies of the checks and the bank statements, and (c) the overruling of defendant's counter claim seeking expenses of litigation. Held:
1. The evidence did not authorize the judgment rendered. There is no evidence whatsoever to contradict the testimony of the defendant as to the contract agreed upon, and this being so, the extra charges shown on the account were not authorized, as these extra items were for adding additional pickets to the fence, which the uncontradicted evidence shows was done for the purpose of complying with the contract as was testified to by the defendant. See in this connection Talerica v. Grove Park Plumbing Service, 103 Ga.App. 591(2), 120 S.E.2d 36.
2. (a) The trial court erred in refusing to admit in...
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Anderson v. Golden
...the contemplated cost, the contractor has little choice but to bear the burden of additional expenses. See Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404, 177 S.E.2d 167 (1970); Talerica v. Grove Park Plumbing Service, Inc., 103 Ga.App. 591, 120 S.E.2d 36 (1961). b) To overcome the ru......
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Ballenger Corp. v. Dresco Mechanical Contractors, Inc.
...Jones, 101 Ga.App. 563, 114 S.E.2d 436 (1960); Hickman v. Frazier, 128 Ga.App. 552, 197 S.E.2d 441 (1973); Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404, 177 S.E.2d 167 (1970); and Watson v. Planters & Citizens Bank, 110 Ga.App. 725, 140 S.E.2d 30 (1964). Each of the foregoing cases ......
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G. E. C. Corp. v. Levy
...to the expenses of litigation and that the judge erred in failing to charge in this regard. As held in Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404(3), 177 S.E.2d 167: 'There was no error in overruling the defendant's counterclaim for expenses of litigation and in refusing to admit ......
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Harrison v. Lawhorne
...68, 62 S.E.2d 673, 675. Appellant argues that the evidence was inadmissible under our rulings in the cases of Pitman v. Dixie Ornamental Iron Co., 122 Ga.App. 404, 177 S.E.2d 167 and Photographic Business & Product News v. Commercial Color Corporation, 122 Ga.App. 825, 178 S.E.2d 922. Both ......