Thomas v. Statewide Beverage Equipment, Inc.
| Decision Date | 14 November 1979 |
| Docket Number | No. 57705,57705 |
| Citation | 262 S.E.2d 575,152 Ga.App. 293 |
| Parties | THOMAS et al. v. STATEWIDE BEVERAGE EQUIPMENT, INC. et al. |
| Court | Georgia Court of Appeals |
Fletcher Thompson, Atlanta, for appellant.
Tyrus R. Atkinson, Jr., Atlanta, for appellee.
Appellees brought this action against appellants to obtain payment under an alleged contract for the remodeling of appellants' restaurant. Appellants counterclaimed, asserting that appellees had 1) converted certain property and 2) fraudulently overcharged them. Following a trial, the trial court granted appellees' motion for directed verdict on the counterclaims. The jury returned a verdict in favor of appellees and judgment was rendered in accordance with the verdict. Appellants assert that the jury verdict was excessive and that the trial court erred in granting appellees' motion for directed verdict. We reverse the direction of a verdict on appellants' counterclaim for conversion of certain chairs, tables, and fixtures. In all other respects, the judgment of the trial court is affirmed.
1. The verdict was supported by the evidence and was not excessive.
2. It is undisputed that appellees were in lawful possession of building materials, chairs, tables, and fixtures of appellants. In order to establish a conversion of property under these circumstances, it was incumbent on appellants to show a demand for the return of the property and a refusal to deliver it. McDaniel v. White, 140 Ga.App. 118, 119, 230 S.E.2d 500 (1976); Robbins v. Welfare Finance Corp., 95 Ga.App. 90, 96, 96 S.E.2d 892 (1957). Appellants produced no evidence of a demand for the building materials or a refusal to deliver them. Therefore, appellants have failed to establish a prima facie case of conversion of building materials.
A different result must obtain with respect to appellants' chairs, tables, and fixtures. As to these items appellants introduced sufficient testimony to raise a jury question on "demand and refusal." For instance, appellant Earl Thomas testified: " . . . I come over there to pick up the property at one time and was refused the property." In light of this testimony, it was error for the trial court to direct a verdict against appellants on their counterclaim for conversion of appellants' chairs, tables, and fixtures. Appellees introduced no legally conclusive evidence that a "demand and refusal" had not taken place.
3. The trial court did not err in directing a verdict against appellants on their counterclaim for fraud. We are in complete agreement with the trial judge that the instant case is not "a fraud case." While there was clearly a dispute over certain price terms in the contract, appellants did not provide sufficient testimony to raise a jury question on fraud. See Cosby v. Asher, 74 Ga.App. 884, 886, 41 S.E.2d 793 (1947).
4. Appellants assert that the trial court committed reversible error in sustaining appell...
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Gryder v. Conley
...to remove it. This is some evidence that creates a question of fact on the issue of conversion. See Thomas v. Statewide Beverage Equipment , 152 Ga. App. 293, 294 (1), 262 S.E.2d 575 (1979). 2. Gryder Networks argues that a question of fact remains as to whether Conley breached fiduciary du......
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Marathon Oil Co. v. Hollis
...these circumstances, the court's refusal to admit the deposition constituted at most harmless error. See Thomas v. Statewide Beverage Equip., 152 Ga.App. 293, 295, 262 S.E.2d 575. 6. For the reasons stated in Division 2 of this opinion, the case is remanded to the trial court for recomputat......
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Kesterson v. Jarrett
...when there is cumulative evidence of the excluded testimony[,] the error may be harmless.”); Thomas v. Statewide Beverage Equip., 152 Ga.App. 293, 295(4), 262 S.E.2d 575 (1979) (Since the excluded testimony “was merely cumulative evidence, its exclusion could not have prejudiced [the] appel......
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Marks v. PHH Mortg. Corp.
...case law supports Plaintiffs' claim that they adequately demanded return of the funds. See, e.g., Thomas v. Statewide Beverage Equip., Inc., 152 Ga. App. 293, 262 S.E.2d 575 (1979) (testimony that plaintiff sought out the property in question and was refused held sufficient to show demand a......