Southwire Co. v. Franklin Aluminum Co.

• Decision Date: 23 September 1966
• Docket Number: No. 42208,No. 3,42208,3
• Citation: 114 Ga.App. 337,151 S.E.2d 493
• Parties: SOUTHWIRE COMPANY v. FRANKLIN ALUMINUM COMPANY
• Court: Georgia Court of Appeals

Page 493

151 S.E.2d 493

114 Ga.App. 337

SOUTHWIRE COMPANY v. FRANKLIN ALUMINUM COMPANY.

No. 42208.

Court of Appeals of Georgia, Division No. 3.

Sept. 23, 1966.

Reuben M. Word, Oscar W. Roberts, Jr., Carrollton, for appellant.

Sims & Lewis, James R. Lewis, LaGrange, for appellee.

Syllabus Opinion by the Court

JORDAN, Judge.

The plaintiff filed suit on open account to recover a judgment in the amount of $8,351.66 for materials allegedly sold and delivered to the defendant for which payment had not been made. The defendant in its answer admitted that payment had been refused but denied that it had received the goods representing the amount sued for and filed a plea of accord and satisfaction. Upon the call of the case for trial the plaintiff made an oral motion to strike paragraphs 4 through 11 of the defendant's answer from the pleadings on the ground that the allegations contained therein were legally insufficient to constitute a valid plea of accord and satisfaction. This motion was denied and the case proceeded to trial. At the close of the evidence the defendant withdrew its plea of accord and satisfaction, leaving the question of delivery of the goods as the sole issue for the jury. The jury returned a verdict for the defendant, and the plaintiff filed a motion for judgment notwithstanding the verdict in accordance with its previous motion for a directed verdict, and in the alternative, a motion for new trial. These motions were denied and the plaintiff appealed to this court, enumerating as error the denial of these motions and the antecedent motion to strike certain paragraphs of the defendant's answer, and further enumerating as error an excerpt from the charge of the court and the failure of the court to give certain instructions to the jury. Held:

1. Irrespective of the legal sufficiency of the allegations of paragraphs 4 through 11 of the defendant's answer to constitute a valid plea of accord and satisfaction, these paragraphs contained certain allegations properly pleaded by way of defense, and the trial court did not err in denying the plaintiff's motion to strike which was addressed to such paragraphs as a whole. Wilson v. Tumlin, 103 Ga.App. 654(2), 120 S.E.2d 196.

2. The record in this case does not disclose that proper exception relevant to the instructions and absence of instructions upon which error is enumerated was made by the plaintiff to the charge after it was presented to the jury; accordingly, these enumerations of error cannot be considered under the provisions of Section 17(a) of the Appellate Practice Act of 1965 (Ga.L.1965, pp. 18, 31; Code Ann. § 70-207(a, b)), the alleged errors not coming within the exception set forth in Section 17(c) of the Act. Nathan v. Duncan, 113 Ga.App. 630, 149 S.E.2d 383; Ga. Power Co. v. Maddox, 113 Ga.App. 642(1), 149 S.E.2d 393.

3. (a) As stated above, the controlling issue of fact in this case was the question of the delivery or non-delivery of the materials representing the account sued on which consisted of 35,091 pounds of aluminum billets in 15 bundles weighing 2 to 3 thousand pounds each. The record discloses that on the morning of the purported delivery to the defendant, the shipment arrived by motor common carrier at the plant of the plaintiff to whom the goods had been consigned where in the usual course of business the shipment would have been unloaded and then later reloaded on the truck of the plaintiff for shipment to the defendant upon order; that on this particular occasion, the plaintiff for its...