Opinion
36297.
DECIDED JANUARY 8, 1957.
Action on open account. Before Judge Etheridge. Fulton Civil Court. May 14, 1956.
Stubbs D'Alessio, for plaintiff in error.
Endicott Endicott, Wilbur H. Underwood, Jr., contra.
Since the evidence presented a question for a jury's determination, it was error for the court to direct a verdict for the plaintiff and to deny the defendant's motion for a new trial.
DECIDED JANUARY 8, 1957.
B. W. Bradford, doing business as Bradford Sales Company, sued J. J. O'Connor and Norwood Realty Company, Inc., on an open account. The original petition alleged in part as follows: "2. That the aforesaid defendant, J. J. O'Connor, hereinafter referred to as defendant contractor, did contract with the aforesaid defendant, Norwood Realty Company, Inc., hereinafter referred to as defendant owner, to improve, build houses on, and develop certain realty, the property of the aforesaid defendant owner and more particularly known as Drew Valley Subdivision, DeKalb County, Georgia. That pursuant to said arrangement the defendant contractor did so improve, develop, and build houses on the aforesaid realty, much of said work transpiring during the years 1954 and 1955"; that in December of 1954 the defendant contractor purchased certain materials from the plaintiff which were installed in the houses in said development; "6. Defendant owner through its officers and agents, and more specifically its president and its secretary-treasurer, knew of said purchase and did assent to same and adopt said purchase for its own; that defendant owner has been purchasing materials for improvement of said subject subdivision through defendant contractor and from your petitioner all during the course of said construction and without objection; that defendant owner has hitherto and from time to time made payments relative to said purchases; that in fact, defendant owner, under identical circumstances and for items similar to those in question furnished by plaintiff on or about November 15, 1954, did pay for same; that on or about March 1, 1955, defendant owner, through its secretary- treasurer, did assure your plaintiff the subject items would be paid for `as soon as we receive more construction money' but has failed to make payment; that defendant owner raised no objection to delivery, acceptance, or use of the subject material until liens were filed, and that irrespective thereof, defendant owner had continued to contact your petitioner with a request for routine service on said subject material."
By amendment the plaintiff struck Norwood Realty Company, Inc., as a party defendant and struck in its entirety paragraph 6 of the original petition and added the following allegation: "That defendant contractor, the said J. J. O'Connor, did purchase said items on his, the said credit of J. J. O'Connor, and said defendant is indebted to your petitioner by reason thereof. Your petitioner avers that he then, now and at all times herein, has so treated said sale and purchase as an indebtedness due and owing to your petitioner by the said defendant, J. J. O'Connor."
The defendant's answer contained a general denial of the plaintiff's allegations.
At the close of the evidence, the court directed a verdict for the plaintiff. The defendant's amended motion for a new trial based on the direction of the verdict was denied, and he excepts.
Mr. Charles Renner, Jr., testified for the plaintiff in part as follows: That he was employed by the Bradford Sales Company as a salesman; that he called on general contractors or subdivision builders for the purpose of selling them certain kitchen equipment; that in December, 1954, he contacted the defendant for the purpose of selling him some kitchen equipment for a subdivision; that prior to the sale in question he had sold Mr. O'Connor a considerable amount of other kitchen equipment; that at the time he talked with Mr. O'Connor relative to the Drew Valley subdivision, Mr. O'Connor instructed the witness to bill the merchandise to J. J. O'Connor; that "when we first started selling to Mr. O'Connor, I think the first items that went out there were ranges, which were billed to Mr. O'Connor on Northside Drive, and we received payment for one of those from Norwood Realty Company, and some time after that when I was talking to Mr. O'Connor, I asked if Norwood was paying for these, should they be billed to them or to Mr. O'Connor, and he said, `You continue to bill them to me at my Northside Drive address'"; that the invoices in question were received by Mr. O'Connor, "I am very sure Mr. O'Connor received them, because in a conversation in his office last October he admitted receiving them, and said he passed them on to Norwood Realty Company"; "Q. Mr. Renner, I believe you stated that at one time you had a conversation with Mr. O'Connor about who should be billed for these items, is that correct? A. As I said, I asked Mr. O'Connor if we should continue billing them to Joseph, J. O'Connor, since we had a check for the first few invoices from Norwood Realty. . . Q. At the time you went to see Mr. O'Connor, isn't it true that you had not been paid for those items which your company had furnished? A. No, we had been paid for the first items, because, as I say, the reason I asked him the question was because the check came from Norwood Realty instead of Joseph J. O'Connor. Q. All right. During that conversation isn't it true that Mr. O'Connor told you that he would help you get the money from Norwood Realty? A. I don't believe I asked for any help at the time. We had already gotten the money for those invoices. Q. I wish you would answer my question, Mr. Renner. Isn't it true that Mr. O'Connor offered at that time, and the gist of the conversation was that he would help you get the money from Norwood Realty for these items and any items to go into the subdivision in the future? A. I don't recall that conversation at that time. Q. Do you recall that conversation at a later date? A. I believe I did go out there once when we had some past due invoices, and as I remember, the gist of the conversation — now this is real long ago. I told Mr. O'Connor these invoices were running late, past due, and he was quite perturbed that they hadn't been paid in ten days so the two percent discount could be taken, and I think it was his suggestion that I call Mrs. Norwood and check with her, because it was my understanding the construction money was being received by Norwood Realty Company and that Norwood Realty was supposed to pay those invoices as soon as he passed them on to them. Q. These five invoices we are interested in now, do you know through contacts, conversations, and so forth, whether or not these invoices ever got to Norwood Realty or not? A. From a first-class viewpoint I couldn't say, except I understood from Mr. O'Connor they had been. Q. Now, did you talk to anyone at Norwood Realty? A. I talked to Mrs. Norwood, and she told me as soon as they got some more construction money they were going to be paid. Q. As soon as they got some more construction money they were going to pay for these five items on which this suit is based? A. That is correct. Q. Now, how many times did you talk to Mrs. Norwood? A. I believe just the one time that I know of. Q. How many times did you call the Norwood Realty Company about these items? A. Well, when I called, I called Mrs. Norwood. Q. How many times did you call Norwood Realty? A. My Recollection is I just called her once about it, and she said they were going to be paid, but we never did get any money."
The plaintiff B. W. Bradford testifying in his own behalf identified some five invoices issued to J. J. O'Connor for materials used in the Drew Valley subdivision and testified that these invoices were paid by checks issued by Norwood Realty Company.
The defendant Joseph J. O'Connor testified in part as follows: "Q. Now I want you to tell me, Mr. O'Connor, the first contact you had with anyone from Bradford Sales Company in connection with Drew Valley subdivision. A. Charlie Renner heard that I was going to build about 40 units out there, I think in about February — Q. What year, sir? A. Of `54. He came on out with the idea of selling me on these new gas units. They are very new. I think Bradford Sales Company were the first outlet in town for them, and they looked like a good leader; so we discussed it, and I decided to put them in. I explained to Charlie at the time my exact status with Norwood. Q. Will you state what you did tell Mr. Renner as to the relationship you had with Norwood? A. I told Renner that I was building these houses for Norwood Realty. Charlie then said he wanted no part of that, because he had dealt with Norwood in the past and his credit wasn't very good. Q. Now, Mr. O'Connor, will you state, or restate, what you told Mr. Renner at this time — you say in February, 1954 — about your relationship with Mr. Norwood? A. I told him that I was going to build these houses for Norwood, that it would be 40 units, and I was to get $200 per house upon the completion and VA approval of the house, and then split the profits that were involved. That is we two were to split the profits. Norwood was to assume all the bills. He would allow me to make draws on my progress as the work went along. Q. Now, did you own that real estate? A. Oh, no, I didn't own anything. Time was all I had at stake. Q. Who owned it? A. Norwood Realty Company. Q. Now, did you and Mr. Renner discuss the extension of credit to Norwood Realty Company, Inc.? A. Oh, yes, we went through that thoroughly, 100 percent. There was no misunderstanding on that. Q. What was your understanding about the extension of credit to Norwood Realty Company, Inc.? A. Renner did not want to go along and sell the units if Norwood was going to pay for them. It seems Bradford and Renner had worked with Norwood in the past, and his credit wasn't good; so Charlie asked me to have those bills sent to me and for me to pass them on to Norwood and for me to keep after Norwood to see that he got his money. Q. In the course of the various orders, sales and checks that were made out, did that arrangement work out? A. It worked out fine. There was several occasions when there was a lag of two or three months on the payment after delivery of the gas units. I would call Norwood up and raise hell, and Charlie would ultimately get his money. Q. Did anyone from Bradford Sales ever contact you in relation to these five units we are talking about? A. No, sir, not for payment. May I add something to that? At no time in my association with Bradford did they ever come to me when the bills were late asking for me to pay for anything in that project. Q. Did they ever come to you in connection with your connection with Norwood about the payments? A. Oh, yes. Charlie would come out to the job and ask that I do what I could to get either Mr. or Mrs. Norwood to give them a check, and I did what I could. And in some instances I was successful in expediting it. . . Q. Now, Mr. O'Connor, from the beginning of the first transaction that you had with Bradford Sales Company in connection with Drew Valley subdivision for material that went into Drew Valley subdivision, did you ever pay a dime to them? A. No, sir. Q. You never paid any amount? A. No, sir, it was all paid by Norwood. . . Q. Mr. O'Connor, I want you to repeat what you said the best you can recall with reference to Renner's — Mr. Renner's — conversation with you relative to credit being extended Norwood Realty Company, what you testified to on direct examination. A. Yes, as well as I remember it. We first started — Charlie came out — Renner, that is — and I told him what I was going to do with these units, and he told me he had difficulty in the past in his association with Norwood, and he wanted to bill the merchandise to me; that he was going to get the money; that I would then take the invoices and send them on down to Norwood, and Norwood then, in turn, would pay Bradford Sales Company. Q. He told you that he had had difficulty with Norwood and he wanted to bill you, is that correct? A. That's right. Q. And I believe you testified, too, that Mr. Renner said, `I don't want to go along with the sale of these goods if Norwood is to be responsible for them.' A. No, no; if I was not in the picture. Q. If you were not in the picture? A. Yes. In other words, I would have to be the buffer, but he was looking to him all down the line. Q. I beg your pardon. You would have to be the what? I didn't get you there. A. What? Q. What was that you just said? A. I would have to be the buffer, more or less. Q. So that he, in his conversation with you, he told you that he would not extend credit to Norwood Realty Company without your O.K., is that correct? A. Without me being in the picture, not necessarily my O.K. Q. And didn't you testify that Mr. Renner said that the only way this merchandise could be delivered was for you to be billed, or words to that effect? A. Oh, no, he could have — He said he would have gone and billed him, but he would rather I would get it, to bill me, and me send it on to him. Q. He would not bill Norwood directly, would he? A. He would, but he would rather I get into it. Q. He insisted on you taking the bills, is that right? A. Taking the bills, and they would go down to Norwood. Q. You being the buffer, is that right? A. That's right. Q. And did you testify that if Norwood fell down, you were to be held responsible? A. Oh, no. . . I would have washed that out right then if he had pulled that on me. Q. Didn't you testify — A. . . . Q. — that, if Norwood fell down, it would bounce back on you? A. What? I didn't get you. Q. That, if Norwood fell down, it would bounce back on you. A. Oh, no. I would be holding the bag like I am now. Oh, no. Q. He made it clear the only way the goods were to be sold was for you to be billed? A. He was never looking to me for payment. He certainly wasn't looking for me to back Norwood up. Q. Why did he want you to be billed? A. I just explained it to you. . . I would never . . . Q. You testified you were to be the buffer? A. That's right. Q. And he wasn't going to sell those goods unless you would be the buffer? Isn't that true? Isn't that what you just testified? A. No, no. He said he would like for me to be billed, and I went along with the arrangement. Q. You agreed to be billed? A. That's right, and he would look to Norwood for payment. Q. Wait a minute. Did you agree to be billed, or that he would look to Norwood? A. That's right, because the invoices were going down to Norwood. Q. Wait a minute. He didn't send the invoices to Norwood, did he? He told you he would send them to you. A. That's right. Q. And you would get them, and you agreed to accept them? A. Yes, but we also agreed the bills were going to Norwood and he was going to get his money from Norwood. There was no question about that at all. Q. He told you, `I don't want to go along if Norwood is to have to be charged with these goods.' A. No. Yes, he was going to charge them to me, but he was looking for payment from Norwood. Q. Well, not what he was looking for, Mr. O'Connor. Just answer my question, please sir. He said he was going to bill them to you, didn't he? A. That's right. Q. And he was going to look to you for payment. A. But this other part should be in there, too, that he was at all times looking for Norwood to pay that. Q. That is an assumption on your part. A. That's not an assumption; that's a statement of fact. Q. He told you that? A. Yes, sir. Q. He told you that at all times he was looking to Norwood for — A. Yes, sir, that he was looking to Norwood for payment. Q. Then did he say to you, `I insist on you being billed'? A. That I was to be the buffer; in other words, that I would be helping him get his money from Norwood. . . Q. Mr. O'Connor, would you explain in your own words your understanding with Mr. Renner as to how — if there was an understanding — how you could help them collect from Norwood Realty Company? A. I told him I would intercede as much as I could with Norwood to see that they paid whatever bills Charlie had. . . . Q. What was your understanding as to who Bradford Sales was crediting, or extending credit to? A. They were extending credit to Norwood Realty Company. Q. Then why were they billing it to you? A. Well, it sounds stupid now, but just to have me in the middle and help them get their money. Q. Well, how would they have you in the middle? A. Well, for the same reason they are doing me here. I didn't have anything to do with these houses. They knew that from the very beginning. I was just trying to be decent about it with them, and that was all. Q. Did you understand at the time he said he had had unsatisfactory dealings with Norwood previously that by you coming in the middle. or being the buffer, as you say, that he was going to look to you for payment when Norwood didn't pay? A. Oh, no, sir, that never came into it. He would go after Norwood in a court of law. Q. Well, suppose for any reason he was unable to get it out of Norwood; suppose Norwood had gone into bankruptcy and denied owing it, did you understand you would be liable for it? A. Oh, no, sir, not at any time."
Paragraph 6 of the plaintiff's original petition, which paragraph was stricken from the petition by amendment, and which was later introduced in evidence by the defendant, alleged that the Norwood Realty Company, Inc., did "adopt said purchase for its own", had purchased materials for the improvement of the said subdivision "through defendant-contractor", and had from time to time paid the plaintiff for such purchases. "Admissions contained in a stricken plea may be introduced in evidence by the opposite party. Such admissions when thus made are to be taken as true, because they are asserted by the party himself; and while the party may withdraw them formally from the pleadings, he can not by a mere withdrawal avoid the effect of the admissions, since they may still be used as evidence against him. Cooley v. Abbey, 111 Ga. 439, 443 ( 36 S.E. 786)." Stallings v. Britt, 204 Ga. 250 (2) ( 49 S.E.2d 517). Suffice it to say without an elaboration that the evidence taken with the plaintiff's admission was sufficient to present a question for a jury's determination as to whether the purchases were made by O'Connor as an individual or whether they were purchased by Norwood Realty Company, Inc., through J. J. O'Connor, and it was error for the court to direct a verdict for the plaintiff. The court erred in denying the defendant's motion for a new trial.
Judgment reversed. Quillian and Nichols, JJ., concur.