United Eng'rs & Constructors Inc v. Fiat Metal Mfg. Co
| Decision Date | 13 July 1932 |
| Docket Number | No. 8769.,8769. |
| Citation | 175 Ga. 509,165 S.E. 609 |
| Court | Georgia Supreme Court |
| Parties | UNITED ENGINEERS & CONstRUCTORS, Inc. v. FIAT METAL MFG. CO. et al. |
Rehearing Denied Sept. 23, 1932.
1. The allegations of the petition were sufficient to show that the plaintiff held the contract sued on by an equitable assignment, and was entitled to maintain the suit in equity to recover thereon. The petition stated a cause of action, and was not subject to the demurrer interposed.
2. The evidence authorized the verdict for the plaintiff and there was no error in refusing a new trial.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by the Fiat Metal Manufacturing Company against the United Engineers & Constructors, Incorporated, and another. Judgment for plaintiff, and first-named defendant brings error.
Affirmed.
Fiat Metal Manufacturing Company brought a suit in equity against United Engineers & Constructors, Inc., hereinafter called the engineers company, and against S. R. Hewitt, doing business as Steel Specialties Company, to recover a sum of money alleged to be due to the plaintiff by reason of an equitable assignment by Hewitt of a contract existing between him and the engineers company for work and materials to be furnished to the benefit of the engineers company. The engineers company demurred to the petition generally upon the ground that it set forth no cause of action; and to certain paragraphs specifically upon the ground that it appeared by the allegations that the plaintiff did not hold the contract by any legal or equitable assignment and that its remedy, if any, was to proceed against Hewitt and not against the engineers company. The court overruled all grounds of the demurrer, and the trial resulted in a verdict in favor of the plaintiff and against each of the defendants for separate amounts. The engineers company brought the case to this court, assigning error upon the overruling of the demurrer and upon the judgment refusing a new trial.
The allegations of the petition were substantially as follows: In August, 1928, the engineers company had a contract to erect and construct a building in the city of Atlanta, including a number of toilet rooms. The plaintiff company was engaged in the business of manufacturing steel partitions for toilet rooms, and S. R. Hewitt was acting as its sales representative in the city of Atlanta. Hewitt negotiated with the engineers company for the furnishing of steel partitions for the toilet rooms in the building in question, and was to have received a commission of 15 per cent. of the purchase price of such material as might be sold for the plaintiff. During the negotiations between Hewitt and the engineers company, he ascertained that the company would not purchase the plaintiff's material unless the plaintiff would contract to install as well as to furnish it. The plaintiff, not being in position to furnish the labor necessary to install the material, arranged with Hewitt to enter into a contract with the engineers company to furnish and to install the same, with the understanding that upon the execution of such contract Hewitt would transfer and assign the same to the plaintiff. The plaintiff was then to collect the sums due from the engineers com-pany and thereafter pay to Hewitt the amount of his commission and also the amount of money represented by the difference between the purchase price of the material as sold by the plaintiff and the total amount to be paid by the engineers company for the material as furnished and installed. In pursuance of this agreement, Hewitt, on August S, 1928, acting in the name of Steel Specialties Company, entered into a contract with the engineers company for the furnishing of "the material for the steel partitions and for the erection and installation of the same in the building in question. On August, 21, 1928, in accordance with the previous agreement between Hewitt and the plaintiff, he forwarded to the plaintiff the contract as entered into between himself and the engineers company. The contract was accompanied by a letter as follows:
The petition alleges that while this letter did not, constitute a direct legal assignment of the contract, it nevertheless amounted to an equitable assignment "under the agreement between said S. R. Hewitt and petitioner, which agreement was made and entered into prior to the time the said contract was executed on August 8, 1928." The consideration for the agreement between Hewitt and the plaintiff was the 15 per cent. commission to be received by Hewitt and the profit to be made by him in installing the partitions. In furtherance of the arrangement between the plaintiff and Hewitt, and at his instance, the plaintiff, on September 1, 1928, notified a bank in Marietta that Hewitt would be entitled to a commission of over $500 "on said job, " which notification was given by the plaintiff on the representation of Hewitt that he desired to arrange with the bank for credit in meeting pay rolls.
On October 4, 1928, the plaintiff wired the engineers company as follows: This telegram was followed by a letter of confirmation. The engineers company acknowledged receipt of the telegram at once, and on October 8 wrote to the plaintiff a letter stating: "This assignment is satisfactory." The plaintiff thereafter shipped to the engineers company the necessary material to be used in the erection and construction of the toilet partitions, as shown in the itemized statement attached to the petition. The purchase price of the material alone amounted to $3,970, to which in the contract between the engineers company and Hewitt there was added the sum of $650 to cover the work of installation, making a total of $4,620 as the cost of the material delivered and installed. The plaintiff is ready and willing to pay to Hewitt, doing business as Steel Specialties Company, the sums that will be due to him as stated above, when the contract price of $4,620 is paid to the plaintiff by the engineers company.
The prayers were for process against both the defendants, for judgment against the engineers company, and for general equitable relief. Before verdict, the petition was amended so as to pray for judgment against Hewitt in the event that the court and jury should determine that there had been no equitable assignment of the contract between Hewitt and the engineers company, and if the plaintiff thus was not entitled to a recovery against the engineers company. The jury found for the plaintiff $1,403 against Hewitt, and $1,577.96 against the engineers company. The engineers company is the only party complaining, and no question is raised as to the amount of the verdict, or as to the finding in part against each of the defendants separately.
McDanicl, Neely & Marshall and W. O. Wilson, all of Atlanta, for plaintiff in error.
Geo. B. Rush and Thomas & Thomas, all of...
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