Robinson v. Reward Ceramic Color Mfg., Inc., 44582

• Decision Date: 02 September 1969
• Docket Number: No. 44582,No. 2,44582,2
• Citation: 120 Ga.App. 380,170 S.E.2d 724
• Parties: Jacqueline A. ROBINSON v. REWARD CERAMIC COLOR MANUFACTURING, INC
• Court: Georgia Court of Appeals

Page 724

170 S.E.2d 724

120 Ga.App. 380

Jacqueline A. ROBINSON v. REWARD CERAMIC COLOR MANUFACTURING, INC.

No. 44582.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1969.

Rehearing Denied Sept. 24, 1969.

Certiorari Denied Nov. 12, 1969.

George P. Dillard, G. Douglas Dillard, Decatur, for appellant.

Murphy, McFarland & Turoff, Martin McFarland, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

Reward Ceramic Color Mfg., Inc. brought suit on open account against Mrs. Jacqueline Adams Robinson, a/k/a Mrs. Jacqueline R. Adams, a/k/a Mrs. R. E. Adams, individually and trading and doing business as Jacqueline Lea Studio. Upon trial before the judge without a jury Reward secured a judgment in the amount sued for, and defendant appeals from the judgment and the order overruling her motion for new trial as amended. Held:

1. Defendant filed a motion to dismiss the complaint and to strike Exhibit A and each and every invoice, statement, or document thereof on the grounds that the invoices and statements show upon their faces that they are obligations of Jacqueline Lea Studio, Inc., a corporation, and not of defendant individually or doing business as a proprietorship. Similar oral motions were made at the trial. These motions are without merit. While it is pointed out that three of the invoices were billed to Jacqueline Lea Studio, Inc., the majority are billed to Jacqueline Lea Studio, the proprietorship. Attached to the petition is an application for a Reward distributorship showing the business name as Jacqueline Lea Studio, 1370 Lawrenceville Highway, Decatur, Georgia, and the owner's name is stated as Mrs. Jacqueline R. Adams (R. E.). The application is signed by Jacqueline R. Adams (Mrs. R. E.) and among the credit references are bank accounts in the names of Jacqueline Lea Studio and Mrs. R. E. Adams. While the invoices billed to the corporation may have been subject to motion (See Gilham v. Stamm & Co., 117 Ga.App. 846, 162 S.E.2d 248), the remainder billed to the proprietorship obviously were not, and the wholesale or en banc attack made by the motions must fail. It is a truism by now that under the CPA a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. And citation of authority is also unnecessary for the proposition that a wholesale objection attacking as a group several paragraphs or exhibits of a complaint is insufficient if any of the paragraphs or exhibits are not subject to the criticism made. The motion to strike and ground 2 of the motion to dismiss were properly overruled, and enumerations of error 2, 11 and 41 are without merit.

2. The motion to dismiss contained the further ground that 'the complaint does not show that plaintiff is a legal entity with any standing to sue.'

The complaint was brought in the form prescribed in Code Ann. § 81A-304. Plaintiff is shown in the caption as Reward Color Mfg., Inc., whereas the invoices attached as exhibits show the creditor to be Reward Color Mfrs., Inc. It is contended that the plaintiff as shown in the caption was not the real party at interest and thus, under Code Ann. § 81A-117(a) was not entitled to proceed with the action. This contention is not meritorious.

It is obvious that this variance in the name is not more than a clerical error or a misnomer which, under Code § 81-1206, might have been corrected instanter. The variance is not substantial, and since it does not appear from the evidence or otherwise that the names are of two separate corporations, denial of the motion did not result in reversible error. See Orr Stationery Company v. Dr. Bell & Lee Drug Company, 4 Ga.App. 702, 62 S.E. 471; Atlantic Coast Line R. Co. v. Cook, 6 Ga.App. 128, 64 S.E. 665; Henderson v. Hackney, 23 Ga. 383; Thompson v. Hall & Long, 67 Ga. 627; Ansley v. Green, 82 Ga. 181(3), 7 S.E. 921; Chattanooga, Rome and Columbus R. Co. v. Jackson, 86 Ga. 676(1), 13 S.E. 109; Hicks v. Ivey, 99 Ga. 648, 26 S.E. 68; Palatine Ins. Co. v. Dickerson, 116 Ga. 794, 43 S.E. 52; Rhodes v. City of Louisville, 121 Ga. 551, 49 S.E. 681; Parramore v. Alexander, 132 Ga. 642(2), 64 S.E. 660; Ramsey v. Mingledorff, 181 Ga. 803, 184 S.E. 322. 'Judicial notice will be taken of the ordinary and commonly used abbreviations and equivalents of Christian names' Goodell v. Hall, 112 Ga. 435, 436, 37 S.E. 725, and '(t)he term 'Christian name,' is used in the sense of given name, and includes the name given to a corporation * * *' Johnson v. Central Railroad, 74 Ga. 397; Love v. Commercial Credit Co., 64 Ga.App. 18, 12 S.E.2d 99.

The misnomer of a corporation as a party in pleadings has the same effect as does the misnomer of an individual. The court could thus take notice that the abbreviations 'Mfg.' and 'Mfrs.' as used here referred to one and the same corporation. 'What was involved was, at most, a mere misnomer that injured no one, and there is no reason why it should not have been corrected by amendment.' United States v. A. H. Fischer Lumber Co., 4 Cir., 162 F.2d 872, 874.

Facility of amendment in this respect under the CPA, Code Ann. § 81A-104(h) is no less than under Code § 81-1206. And since it was an insubstantial but amendable defect which could not injure the defendant, the matter was cured by the verdict and judgment. 'The misnomer in the present case, when considered in connection with the bill of particulars, was slight, and could not possibly have been misleading. * * * The defendant knew who the real creditor was, if any, and it was unnecessary and unjust that the real creditor should have been delayed in the collection of his debt by a misnomer which was patent to the debtor.' Orr Stationery Co. v. Dr. Bell & Lee Drug Co., 4 Ga.App. 702, 704, 62 S.E. 471, 472, supra.

Prior to the adoption of the CPA this matter was properly raised by a plea in abatement, or possibly by special demurrer, but these have been abolished by § 81A- 107, and a motion to dismiss is now the proper vehicle for raising the issue. United States v. A. H. Fischer Lumber Co., 4 Cir., 162 F.2d 872(5). Any error in not requiring plaintiff to amend and correct the defect before overruling the motion to dismiss was harmless here.

3. There was no error in overruling defendant's motion for more definite statement. Attached to the complaint as exhibits were various statements, invoices, etc., showing materials ordered and the status of the account, and we cannot say that the complaint with its exhibits was so vague or ambiguous that defendant could not reasonably be required to frame a proper responsive pleading. CPA § 12(e) (Code Ann. § 81A-112(e)). Enumeration of error 3 is without merit.

4. In support of the enumerations attacking the overruling of the motion for directed verdict, the judgment on the verdict, and the overruling of the motion for new trial on the general grounds, it is argued that the evidence shows that none of the obligations sued upon were incurred by Mrs. Adams (Robinson) but were corporate debts. However, there is ample evidence that Mrs. Adams started the business in 1963 under the name of Jacqueline Lea Studio, Mrs. Adams financing the undertaking and her daughter Marylea doing the work. Mrs. Adams was desirous of obtaining a Reward distributorship and made application for it as indicated in Division 1, supra, and, upon the strength of the application, including her credit references, and her payment to Reward of $1,000, the distributorship for Reward's products was granted to her. Plaintiff relied upon Mrs. Adams' credit and looked to her for payment for materials ordered. In February, 1964 Biemann Martin, Marylea's husband, joined the business and in July, 1964 the business was incorporated with Mrs. Adams as president, Biemann as vice president, and Marylea as secretary-treasurer. No new application was made or distributorship granted in the corporate name, and business relations between the parties were good from 1963 until the summer or fall of 1966. At this time the account was badly in arrears, and on October 28, 1966, plaintiff learned of the incorporation and cut off defendant's credit. At this point Marylea and Biemann took over the business, informed plaintiff that they would be responsible for future debts, and began running the business, ordering materials from plaintiff on a cash basis. While prior to the cut-off date some orders were shipped in the name of Jacqueline Lea Studio, Inc., in response to orders imprinted with that name by a rubber stamp apparently used interchangeably with one reading Jacqueline Lea Studio, and shipments and payments were made under variations of the name Jacqueline Lea Studio, there was never any written or oral agreement that the corporation would be substituted for Mrs. Adams on the obligations, and plaintiff continued to look to her for payment. Thus the trial judge was authorized to find that Mrs. Adams continued to be liable on the account until October 28, 1966 when the new arrangements were made. While it is contended that $1,710.96 was paid on the indebtedness which was not credited to the balance due, this was incurred and paid on the new account of Marylea and Biemann after October 28, 1966. Enumerations of error 4, 7, 8, 9 and 42 are without merit.

5. Enumeration of error number 5 complains of the awarding of interest on the ground that the record shows lack of demand for payment. However, the record reveals a written demand dated December 5, 1966, addressed to Jacqueline Lea Studio at its place of...