Srochi v. Kamensky

• Decision Date: 03 March 1970
• Docket Number: No. 3,No. 44808,44808,3
• Citation: 174 S.E.2d 263,121 Ga.App. 518
• Parties: Allan SROCHI et al. v. Harry KAMENSKY
• Court: Georgia Court of Appeals

Page 263

174 S.E.2d 263

121 Ga.App. 518

Allan SROCHI et al. v. Harry KAMENSKY.

No. 44808.

Court of Appeals of Georgia, Division No. 3.

March 3, 1970.

Rehearing Denied March 27, 1970.

Syllabus by the Court

1. The evidence on the trial being substantially the same as when this case was previously on review before this court, the prior ruling that a jury question was presented became the law of the case and binding upon the subsequent appeal.

2-4. There was no harmful error in the exclusion and admission of certain testimony.

5. A charge containing two distinct propositions, conflicting one with the other, is calculated to leave the jury in such a confused condition of mind that the jury cannot render an intelligible verdict and requires the grant of a new trial.

This case arose out of a suit on a promissory note brought by Alan Srochi and Sanford Orkin against Harry Kamensky in the Muscogee Superior Court. The note in question was for the principal sum of.$19,000, was dated January 25, 1965, and was payable by Harry Kamensky to his brother, Sidney Kamensky.

The defendant in answer to the claim raised the following defenses: (1) that there was no consideration for the note; (2) that the defendant had given the note to his brother for a special purpose, to-wit, as an accommodation note for the purpose of providing security so that his brother could secure a loan from Merchants Mutual Credit Corporation; (3) that before the note was transferred to the plaintiff the defendant had paid his brother or others for his benefit sums more than the amount of the note and that the defendant was entitled to set-off such payments. For a full discussion of the pleadings and background of the evidence involved in this case, see the prior appearance in Srochi v. Kamensky, 118 Ga.App. 182, 162 S.E.2d 889, where this court considered and reversed the sustaining of the defendant's motion for summary judgment. In arriving at the decision the court pointed out that the proof adduced on motion for summary judgment was in conflict and for the jury's determination as to each of the grounds of defense proffered by the defendant.

The case is now before us after the trial in which the jury returned a verdict for the defendant. The plaintiffs appeal, enumerating as error the overruling of their motions for judgment notwithstanding the verdict, the overruling of their motion for new trial and of certain special grounds which were contained in the motion for new trial.

Arnall, Golden & Gregory, Elliott H. Levitas, Atlanta, Grogan, Jones, Jones & Layfield, Milton Jones, Columbus, for appellants.

Hatcher, Stubbs, Land & Rothschild, A. J. Land, Columbus, for appellee.

QUILLIAN, Judge.

1. The evidence introduced on the trial of the case was in every material substance identical to that which the court considered on motion for summary judgment. The witness, Sidney Kamensky, did not testify on the trial of the case, while his deposition and affidavit were taken on motion for summary judgment. However, his evidence in toto was, if anything, more favorable to the contentions of the plaintiffs. Hence, the rule would be applicable that the rulings on a former review, whether right or wrong, are binding on this court where the evidence on the principal issues is substantially similar. Ludden & Bates Southern Music House v. Toney, 42 Ga.App. 434, 156 S.E. 706; New York Life Ins. Co. v. Ittner, 62 Ga.App. 31, 8 S.E.2d 582. Since the law of the case was established when the case was previously before this court (see Code Ann. § 81A-160(h); Ga.L.1966, pp. 609, 662; 1967, pp. 226, 239, 240), the cases cited by the plaintiffs are not controlling. Life & Cas. Ins. Co. v. Tenn. v. Webb, 115 Ga.App. 521, 523, 154 S.E.2d 790.

On the prior appearance the court held as to the first ground of defense that the evidence was inconclusive and conflicting on the question of lack of consideration and that a question of fact remained. As to the second defense it was held: 'This evidence is conflicting and the true purpose for which the note was given should be determined by a jury. A summary judgment for defendant on this defense was not authorized.'

The court also held with regard to the third defense: 'A jury may or may not find that some of these checks represent obligation of Sidney to Harry 'in some way connected with the debt sued on, or the transaction out of which it sprung' so as to entitle him to setoff.' Under these circumstances, the trial judge did not err in denying the plaintiffs' motions for judgment notwithstanding the verdict and their motion for new trial.

2. In arguing the various remaining enumerations of error the appellants group them in various categories which for the purpose of cohesiveness and clarity we shall adopt.

The appellants contend that the court should have allowed testimony which would have established or tended to establish the existence of a need by the defendant to acquire a rather substantial sum of money at the time the note was signed and which the defendant claimed was an accommodation or given for a special purpose rather than as an actual means of acquiring funds. This encompasses enumerations of error 7 and 11.

As to ground 11 the record shows no ruling was made by the trial judge. Augusta Roofing & Metal Works, Inc. v. Clemmons, 97 Ga.App. 576(1), 103 S.E.2d 583; Davis & Brandon v. Seaboard Air-Line Railway, 136 Ga. 278, 71 S.E. 428; Southern Railway Co. v. Farmers Union Warehouse Co., 146 Ga. 141(1a), 90 S.E. 860. As to ground 7, while an objection was sustained, substantially similar evidence was admitted and we find no harmful error. Herrington v. Herrington, 42 Ga.App. 126(11), 155 S.E. 51; Parker v. Vrooman, 87 Ga.App. 287(2), 73 S.E.2d 777. Thus, these grounds are without merit.

3. Enumeration of error 9 claims that the court erred in allowing the defendant to testify that the plaintiffs wanted something they could write off for tax purposes.

The record reveals that counsel for appellants was questioning the defendant about a letter concerning the note which was written to him by an attorney for the plaintiffs. When asked whether he had the original of the letter, the defendant answered negatively and stated that it was returned to the attorney for the plaintiffs. Counsel for the plaintiffs then asked the question 'Why did you do that?' and received the following reply: 'Well, because I got a call from my brother Sidney and he said, 'I had to give your note-." Counsel then interposed, 'Your Honor, I am going to have to object to this.' The following colloquy then took place: 'The Court: You asked him why, Mr. Jones and apparently this is responsive to your question. Mr. Jones: I asked him why, Your Honor, he returned the original of a letter to an attorney. The Court: Well, he is trying to explain it.' The defendant then stated: '-and he said that, 'Mr. Orkin and Mr. Scrochi wants something that they can write off and they can't get the money from me and so they are going to write you a letter and across the bottom of the letter you write that you are not in a position to pay the note.' The original was mailed to me and I scratched across the bottom that I was not in a position to pay any of the note at this time and I returned it.'

This presented no ground for our consideration on review. Noll v. Nolan, 135 Ga. 712, 70 S.E. 577; Dorsey v. City of Atlanta, 216 Ga. 778, 119 S.E.2d 553. Georgia Power Co. v. Hendricks, 97 Ga.App. 369, 370, 103 S.E.2d 601. However if a question was raised as to whether the answer was responsive, it clearly was responsive to the question posed and thus was not error.

4. Under enumeration of error 16, it is contended that the court erred in failing to allow the secretary-treasurer of Merchants Mutual Credit Corporation to testify that a loan to Sidney Kamensky had already been approved prior to the credit committee's knowledge of the note from the defendant to Sidney Kamensky which was allegedly executed so that Sidney could use it as collateral to get the loan. Counsel for the plaintiffs asked the witness, 'Would you have made the loan to him based on Mr. Orkin's endorsement without that note?' The witness replied 'Yes, indeed. The loan was approved that way by the credit committee without any additional collateral.' At this point, counsel for the defendant objected on the ground that the witness could not testify as to the knowledge of the credit committee of the corporation. The witness then interjected, 'I appeared at every credit committee meeting, sir.' The trial judge sustained the objection. The further question was then asked, 'When the credit committee approved the loan, did they know anything about the note?' Objection to this query was also sustained.

We point out that it was not established that the witness was qualified to testify as to the credit committee's knowledge. In such circumstances, a witness cannot state the mere conclusion that others than himself knew a particular fact. Mims v. Brook & Company, 3 Ga.App. 247, 59 S.E. 711; Brown v. Mutual Life Ins. Co. of N.Y., 29 Ga.App. 794, 116 S.E. 559; Cothran v. Forsyth, 68 Ga. 560(1a); Bush & Hattaway v. W. A. McCarty Co., 127 Ga. 308, 56 S.E. 430. Moreover, it is a conclusion for the witness to testify that if certain facts had been know that a particular course of action would have then been taken. Met. Life Ins. Co. v. Marshall, 65 Ga.App. 696, 705, 16 S.E.2d 33, and Patterson v. Cotton States Mut. Ins. Co., 221 Ga. 878, 881, 148 S.E.2d 320.

It was not error to exclude the proffered evidence.

5....