Wedgewood Carpet Mills, Inc. v. Color-Set, Inc.

• Decision Date: 20 March 1979
• Docket Number: No. 57099,INC,COLOR-SE,57099
• Citation: 149 Ga.App. 417,254 S.E.2d 421
• Parties: , 1979-2 Trade Cases P 62,873 WEDGEWOOD CARPET MILLS, INC. v.
• Court: Georgia Court of Appeals

Page 421

254 S.E.2d 421

149 Ga.App. 417, 1979-2 Trade Cases P 62,873

WEDGEWOOD CARPET MILLS, INC. v. COLOR-SET, INC.

No. 57099.

Court of Appeals of Georgia.

Argued Jan. 16, 1979.

Decided Feb. 26, 1979.

Rehearing Denied March 20, 1979.

Mitchell, Mitchell, Coppedge, Boyett, Wester & Bates, Erwin Mitchell, William T. Boyett, Dalton, for appellant.

Kinney, Kemp, Pickell, Avrett & Sponcler, John T. Avrett, Dalton, for appellee.

BIRDSONG, Judge.

Wedgewood Carpet Mills, Inc. brings this appeal from a directed verdict and judgment against it on its cross complaint in favor of the plaintiff below, Color-Set, Inc., and to the direction of verdicts in favor of the third-party defendants Davis and O'Mahoney.

The facts show that Wedgewood is a carpet manufacturer in Dalton. Color-Set is a wool skein dyer who had a patented process for dying wool in non-unique colors but with a body to the yarn that made the dyed wool unique. Wedgewood entered into negotiations with Color-Set to establish fifteen different colors, three of which were already in use by other carpet manufacturers and twelve that were not available on the yarn market. Color-Set was to furnish the dyed yarn in these colors to no one except Wedgewood and in exchange, Wedgewood was to buy all the yarn for a particular carpet line from Color-Set. Wedgewood purchased approximately $63,000 worth of the various colors of yarn and prepared sample books for sale to numerous dealers in various parts of the United States. This purchase was paid in full by Wedgewood. Thereafter, Wedgewood sold samples to retail distributors and assured the distributors that they would have exclusive distribution of the carpet colors. Wedgewood then purchased in excess of $200,000 worth of yarn for carpet manufacture. Shortly after beginning production of the fifteen color designs, Wedgewood became aware that a yarn identically colored to one of the fifteen colors ostensibly set aside for Wedgewood by Color-Set, had been used in a competitor's carpet. Investigation disclosed that Color-Set had sold some of the exclusive yarn colors to the competitor of Wedgewood. This competitor sold in the same markets as Wedgewood and according to Wedgewood's evidence, this caused substantial loss of profit and was injurious to its business reputation because of the breach of Wedgewood's promise of exclusivity. Wedgewood refused to pay for approximately $134,367 of carpet purchased because of Color-Set's asserted breach of contract by violating Wedgewood's promise to exclusivity. Color-Set brought suit against Wedgewood seeking recovery of the amount due on account. Wedgewood answered denying any indebtedness and filed a counterclaim against Color-Set for breach of contract; and as third-party plaintiff, claimed against Davis and O'Mahoney as officers of Color-Set, for conspiring to interfere in the contract between Wedgewood and Color-Set. In net effect, Wedgewood admitted the indebtedness against it but contended that the amount of its counterclaim exceeded the indebtedness owed to Color-Set. The trial court granted summary judgment to Color-Set as to the basic indebtedness but denied summary judgment as to the counterclaim and as to the third-party action against Davis and O'Mahoney. At the close of the evidence, the trial court granted a directed verdict to Color-Set as to Wedgewood's counterclaim and directed verdicts in favor of Davis and O'Mahoney on the claim that they conspired to interfere with Wedgewood's contract with Color-Set. At the beginning of the trial of the counterclaim, the trial court had denied a motion by Wedgewood to set aside the summary judgment previously rendered in favor of Color-Set on the open account and to require Color-Set to prove its damages. After entry of judgment, the trial court denied Wedgewood's motion for new trial. Wedgewood now brings this appeal, enumerating as error the refusal of the trial court to set aside the summary judgment in favor of Color-Set, the direction of verdicts in favor of Color-Set as to the counterclaim and as to Davis and O'Mahoney, as well as the denial of the motion for new trial on the same grounds. Held :

1. We find no merit in the first enumeration of error. As granted, the summary judgment was denied finality by the trial court until the cross complaint and third party complaint had been settled. The parties consented to this order. The subsequent denial of the motion to set aside the summary judgment did not change the position of the parties. Wedgewood did not offer any evidence on the trial of the cross complaint to show that it had not ordered the $135,000 worth of yarn or that it had paid the amount allegedly owing. The judgment of the court remained in the bosom of the court pending the outcome of the cross complaint. Had Wedgewood prevailed in its actions against Color-Set and Davis and O'Mahoney, the trial court could have taken the necessary action to offset the indebtedness against Wedgewood's established losses.

It is an old and sound rule that error to be reversible must be harmful. First Nat. Bank v. Am. Sugar Refining Co., 120 Ga. 717, 48 S.E. 326; Burger Chef Systems v. Newton, 126 Ga.App. 636, 639, 191 S.E.2d 479. Where a plaintiff in error brings a case as here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party. Brown v. City of Atlanta, 66 Ga. 71.

2. The validity of the next two enumerations of error (direction of verdict...