Whitaker v. Paden
| Decision Date | 03 December 1948 |
| Docket Number | No. 32224.,32224. |
| Citation | 50 S.E.2d 774 |
| Parties | WHITAKER . v. PADEN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. In order for the directing of a verdict to be error, it must appear that there was some evidence, together with all reasonable deductions and inferences from it, to support a verdict for the party against whom it was directed and in determining this question the evidence must be construed in its light most favorable to the party against whom it was directed.
2. In an action to recover the alleged purchase price of merchandise, the rule that the use of a part thereof by the defendant constitutes the acceptance of the whole, does not apply where under the express terms of the contract the merchandise was to be held by the defendant as the property of the plaintiff, and the defendant was to account to the plaintiff and pay for the merchandise as the same was used, but under such circumstances the defendant holds the property as the bailee of the plaintiff.
3. The presumption that arises under Code, § 38-120 upon the failure of a party to answer correspondence within a reasonable time, to the effect that he is presumed to admit the propriety of the acts mentioned in the correspondence and to adopt them, is a rebuttable presumption and subject to explanation.
4. There being evidence in the instant case that would have authorized the jury to have found a verdict in favor of the defendant, it was error to direct a verdict against him.
Error from Civil Court of Fulton County; Clarence Bell, Judge.
Action by C. E. Paden against C. B. Whitaker to recover the alleged purchase price of merchandise alleged due on an itemized account, wherein defendant denied the indebtedness and by way of cross-action claimed indebtedness on the part of plaintiff. To review the judgment, defendant brings error.
Judgment reversed.
The defendant in error, Charles E. Paden trading as Lubri-Gas Laboratories, hereinafter referred to as the plaintiff, brought suit in the Civil Court of Fulton County for the sum of $936.19, the balance alleged to be due on an itemized account, against the plaintiff in error, C. B. Whitaker, trading as Whitaker Oil Co., hereinafter referred to as the defendant.
The latter filed an answer and cross-action in which he denied the indebtedness of the plaintiff and by way of cross-action alleged substantially that the plaintiff is indebted to him in the sum of $3114.91, because in the early part of 1946, plaintiff advised defendant that he intended to establish a southeastern distributing office for Lubri-Gas in Atlanta; that he would set up an extensive sales and distributing organization for the product; that he proposed to defendant that he mix the chemicals to be supplied by plaintiff, with oil, thus making the product, and fill the orders as they would come in from the plaintiff's distributors; that this was agreed upon with the further provision that the chemicals to be furnished by the plaintiff were to be paid for by the defendant as used; that during the negotiations, plaintiff advised defendant that he had already shipped 5 drums of the chemicals to Atlanta consigned to himself; that they were in a warehouse and storage charges mounting up; that plaintiff requested defendant to store same in his (defendant's) place of business as the property of plaintiff; that defendant thereupon paid the storage amounting to $48.27, removed them to his place of business, stored them as the property of the plaintiff and so advised the plaintiff; that he still so holds them subject to plaintiff's orders; that the plaintiff employed defendant as his agent to hold a sales banquet, which defendant held and paid for at a cost of $1066.64 for which the plaintiff agreed to reimburse the defendant; that at the instance of the plaintiff the defendant paid an attorney fee of $500 in a suit involving Lubri-Gas; that the plaintiff failed to establish a sales and distributing organization and no orders were placed with the defendant for the product; that on or about August 30, 1946, defendant paid plaintiff the sum of $2000 as an advancement on anticipated business which the organization plaintiff failed to set up was expected to bring in resulting in loss to defendant of said sum; that on September 9, 1946, defendant discovered that instead of plaintiff having a distribution system, that he had assigned all the southeast territory to one Mr. N. F. Huber; that defendant filled several orders from the accounts of Mr. Huber, using a portion of 1 drum of the chemicals belonging to the plaintiff the value of which is $500 and for which he is ready to account by setting off this amount against his claim. Defendant prays for judgment for $3,114.91.
The itemized statement sued on by the plaintiff shows a charge of $5,788.75, which is credited by each of the items sued for by the defendant and the additional credit of $1237.50 for oil, leaving the balance of $936.19, for which sum, the court, on the trial and at the conclusion of the evidence, directed a verdict for the plaintiff.
The defendant filed a motion for a new trial on the general grounds which he later amended by adding one special ground assigning error on the directing of the verdict against him.
On the hearing the trial judge overruled defendant's motion for a new trial and this judgment is assigned as error.
Matthews, Long & Moore, and Virlyn B. Moore, Jr., all of Atlanta, for plaintiff in error.
Andrew A. Smith, Marvin O'Neal, Jr., and G. Garlon Herin, all of Atlanta, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
The question presented here is controlled by the contract between the plaintiff and the defendant. If the defendant was to account to the plaintiff and pay him for the chemicals which he was holding in his place of business as the property of the plaintiff, as the same was sold by him, then he was the bailee of the property which he held on consignment. See Furst Bros. v. Commercial Bank of Augusta, 117 Ga. 472(1), 43 S.E. 728; McKenzie v. Roper Wholesale Groc. Co., 9 Ga.App. 185, 70 S.E. 981; Johnston-Crews Co. v. Smith, 161 Ga. 382, 131 S.E. 65. This is the contention of the defendant. If the contract was one of outright sale to the...
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...from evidence in motions for directed verdict must be construed most favorably towards the party opposing the motion. Whitaker v. Paden, 78 Ga.App. 145(1), 50 S.E.2d 774; Curry v. Durden, 103 Ga.App. 371(1), 118 S.E.2d 871; Northwestern University v. Crisp, 211 Ga. 636, 647, 88 S.E.2d While......
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...consideration, the evidence must be construed and weighed most strongly in favor of the party opposing the motion. See Whitaker v. Paden, 78 Ga.App. 145(1), 50 S.E.2d 774; Curry v. Roberson, 87 Ga.App. 785, 786, 75 S.E.2d The law of Georgia does not allow a judge, sitting without a jury, to......
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