Security Development & Inv. Co. v. Williamson
| Citation | 145 S.E.2d 581,112 Ga.App. 524 |
| Decision Date | 22 October 1965 |
| Docket Number | No. 3,No. 41416,41416,3 |
| Court | United States Court of Appeals (Georgia) |
| Parties | SECURITY DEVELOPMENT & INVESTMENT COMPANY v. G. P. WILLIAMSON |
Syllabus by the Court
1. The evidence authorized the verdict for defendant, and it was not error to deny plaintiff's motion for judgment notwithstanding the verdict or the motion for new trial upon the general grounds of the motion.
2. The trial court did not err in refusing to admit evidence which was irrelevant to the issues in the case.
3. The charge considered in this division of the opinion could not have misled the jury prejudicially to plaintiff.
Security Development & Investment Corporation brought this action against George P. Williamson. Plaintiff's original petition was based upon an alleged breach of express contract. After the trial court sustained defendant's general demurrers to plaintiff's petition with leave to amend, plaintiff redrafted the petition to seek recovery for money had and received.
The amended petition alleged that defendant and one Walter Kraus jointly accepted from petitioner a check in the sum of $1,500; that defendant and Kraus undertook as a joint venture to obtain a first mortgage commitment from a responsible lending institution for the benefit of petitioner, and the $1,500 was to be used as a retainer for their services; that it was agreed upon that the $1,500 was to be returned if the commitment could not be obtained; that defendant and Kraus never obtained the commitment; and that plaintiff had received the sum of $200, leaving the sum of $1,300 due and unpaid. The petition prayed for judgment in the latter amount.
Defendant filed an answer to the amended petition and a plea in bar denying that defendant and Kraus were joint venturers or partners.
When the case was tried, the jury found for defendant, and the court entered judgment accordingly.
Plaintiff excepts to judgment of the trial court denying plaintiff's motion for judgment notwithstanding the verdict and denying plaintiff's amended motion for new trial.
George S. Stern, Atlanta, for plaintiff in error.
Grant, Spears & Duckworth, William H. Duckworth, Jr., Atlanta, for defendant in error.
1. The evidence is without conflict that Williamson never had individual possession of any of the money in question. Plaintiff based its contention that defendant was liable on the theory that defendant was a joint venturer with Walter Kraus, the person to whom plaintiff's check was made payable and to whom the check was sent. Whether the evidence demanded a finding that defendant and Kraus were joint venturers is the only substantial issue for consideration under the exceptions to the judgments denying plaintiff's motion for judgment n. o. v. and motion for new trial on the general grounds.
'Broadly, there is a joint enterprise or adventure when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.' Atlanta Metallic Casket Co. v. Southeastern Wholesale Furn. Co., 82 Ga.App. 353, 358, 61 S.E.2d 196, 199; Bowman v. Fuller, 84 Ga.App. 421, 425, 66 S.E.2d 249. There must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied of each member of the joint venture to direct and control the conduct of the other. See Holland v. Boyett, 212 Ga. 458(1), 93 S.E.2d 662; Healan v. Huff, 81 Ga.App. 202, 205(1), 58 S.E.2d 500; 30 Am.Jur. 945, Joint Adventures, § 10.
On both sides of the case, there is evidence to show that Kraus was to obtain the loan in New York by his own efforts and devices without assistance of direction by defendant, which indicates that defendant was acting in the posture of a mere intermediary between Kraus and plaintiff. There is no uncontradicted evidence in the record to show that there was any valid express agreement of any kind between Kraus and defendant.
The jury was authorized to find that there was no joint venture, but that defendant was acting as a mere agent of Kraus or as plaintiff's agent or as the agent of both at different times.
The trial court did not err in denying plaintiff's motion for judgment n. o. v. and the motion for new trial on the general grounds.
2. Special ground 1 of the motion for new trial assigns error upon the court's refusal to admit certain evidence. This evidence consists of part of a written agreement between plaintiff and Kraus and Williamson, which plaintiff made the basis of its original petition and which the record discloses was held by the trial court to be void and unenforceable. The court admitted part of the instrument into evidence only for the purpose of proving the existence...
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Floyd v. Colonial Stores, Inc.
...or implied of each member to the joint venture to direct and control the conduct of the other.' Security Development & Investment Co. v. Williamson, 112 Ga.App. 524, 145 S.E.2d 581. Although this is a contract case, the joint enterprise tneory of agency is frequently applied where the 'prof......
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Corrugated Replacements, Inc. v. Johnson
...causing the injury. Williams v. Chick-fil-A, Inc. , 274 Ga.App. 169, 170, 617 S.E.2d 153 (2005) ; Security Dev. & Inv. Co. v. Williamson , 112 Ga.App. 524, 525, 145 S.E.2d 581 (1965). It is the right of mutual control, rather than the actual exercise, that must be shown. Kelleher v. Pain Ca......
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Putnam v. Williams
...the scope of the venture, is usually a substantial question for consideration by the jury. Security Development & Investment Co. v. Williamson, 112 Ga.App. 524, 525, 145 S.E.2d 581 (1965); Bowman v. Fuller, 84 Ga.App. 421, 426, 66 S.E.2d 249 (1951). However, even accepting Putnam's version ......
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City of Eatonton v. Few
...implied of each member of the joint venture to direct and control the conduct of the other. [Cits.]" Security Dev., etc., Co. v. Williamson, 112 Ga.App. 524, 525(1), 145 S.E.2d 581 (1965). See also Time Fin. Svcs. v. Hewitt, 139 Ga.App. 270, 272(2), 228 S.E.2d 176 (1976). In my opinion, Sec......