Siano v. Spindel, 50960

• Decision Date: 30 September 1975
• Docket Number: No. 50960,No. 3,50960,3
• Parties: R. A. SIANO et al. v. E. B. SPINDEL, Exrx
• Court: Georgia Court of Appeals

Page 718

220 S.E.2d 718

136 Ga.App. 288

R. A. SIANO et al. v. E. B. SPINDEL, Exrx.

No. 50960.

Court of Appeals of Georgia, Division No. 3.

Sept. 30, 1975.

Rehearing Denied Oct. 23, 1975.

Feagin, Feagin & Strickland, John E. Feagin, Jr., Atlanta, for appellants.

Webb, Parker, Young & Ferguson, John Tye Ferguson, Atlanta, for appellee.

DEEN, Presiding Judge.

1. This is an action by the widow as executrix against Siano, president of Tech Realty Company, Inc., and the corporation for $2,700 claimed owing to the estate. The defendants filed a joint answer denying indebtedness and setting up counterclaims of the corporation against the decedent for $6,000 rent and of Siano for $30,000 for legal malpractice. The case was set for trial on March 5, 1975, and published on the Active List Calendar of the Civil Court of Fulton County in the appropriate newspaper the week of February 24. On February 28, defendants moved for an order compelling a reply to the counterclaims. The case was removed from the active list and did not appear on the calendar published February 28. Plaintiff, without waiting for a hearing on the motion, filed the desired response on March 3 and prayed that the case be continued on the calendar for March 5, which order was granted the same day. The defendants did not receive notice of this action until noon of March 4, less than 24 hours before the call of the calendar for March 5. They moved to continue the case on the ground that because of these facts they had been unable to subpoena witnesses for the trial.

It was error for the court to force the parties to trial on March 5 under these circumstances. Rule 3 of the Civil Court of Fulton County provides in part: 'There shall be but one civil trial calendar in the Civil Court of Fulton County, which shall be made up from the Active List. Said Active List shall be published on Tuesday of each week preceding Friday, the date of making up the trial calendar. The active list shall be published on Tuesday night and the trial calendar on Friday night of each week.' Georgia Court Rules, § 643, p. 302. Under these circumstances Code § 81-1410 is not controlling. The parties were entitled to notice that the case was reinstated on the calendar at least in time to serve subpoenas 24 hours before it was called for trial. Failure to give proper notice of trial to an adversary is reversible error. Code § 81A-140(c); Wilkes v. Rick's, 126 Ga.App. 266, 190 S.E.2d 603.

2. The plaintiff brought suit as executrix of her husband's estate for legal services allegedly performed by him for Siano and Tech Realty. A statement attached to the complaint, prepared by her as his secretary after his death, and in accordance with instructions left by him, showed a balance 'carried forward as per agreement 4 April, 1974.' Also, in the answer to defendant's counterclaim she stated: 'Plaintiff shows that on April 4, 1974, her decedent and the defendants herein entered into an agreement settling all previous dealings prior to said date.' It was not error to introduce a handwritten bill containing a note by the decedent to his wife ('Edna-Note: Ralph paid $250 on account 7 June 74 to help in my expenses on hospital operation. He's a great guy.') Nor was it error to introduce the handwritten agreement signed by both parties, the signatures having been identified, dated April 4, 1974, and stating: 'Siano will show on Tech Realty books balance due G. D. Spindel as settlement all previous dealings prior to this date the sum of $2800.00 and office rent will apply starting April 1, 1974, at rate of $50 per month. Any further legal or other professional work by Spindel to be billed on hourly basis.' The itemized bill was not objectionable because referring to an account stated on a complaint denominated open account. The contract between the parties was relevant to establish the amount due and beginning point for the account in accordance with a prior settlement agreement. Stone v. First National Bank of Atlanta, 117 Ga.App. 802(2), 162 S.E.2d 217.

3. It is further contended that if these documents were admissible they bound only the corporation, in view of the statement 'Siano will show on Tech Realty book balance due Spindel,' etc. The paper was headed: 'Agreement between Ralph Siano and G. D. Spindel this date is': and it was signed: 'Gilbert D. Spindel Tech Realty Co Inc R A Siano' on three lines. Thus, the agreement purports to be between Siano individually and Spindel, and while Siano signed both his name and that of the corporation of which he was in fact president he failed to indicate the capacity in which he was signing. 'Whether or not the fact of the agency and the identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. 3 Am.Jur.2d 678, § 320. And to relieve himself of personal liability the agent ordinarily has...