Opinion
40501.
DECIDED MARCH 17, 1964.
Action on account. Fulton Civil Court. Before Judge Webb.
Howard Moore, Jr., for plaintiff in error.
The direct and positive evidence in this case is uncontradicted by other testimony or circumstances inconsistent with it and demanded a finding that the defendant debtor did not receive notice of the assignment of his account (with his creditor) to the plaintiff before he paid the account in full to the assignor thereof.
DECIDED MARCH 17, 1964.
Dealers Supply Co. filed an action against Thomas Alexander, individually and d/b/a Alexander's Home Improvement Co., to recover, as assignee of Lorenzo Whitaker, d/b/a Whitaker's Heating Air Conditioning Co., an alleged balance due of $850. Attached as exhibits to the petition were the contract between the defendant and Whitaker, assignment of the contract to the plaintiff, and the plaintiff's notification to the defendant of the purported assignment. It was stipulated that the balance was due under the defendant's account with the assignor, and that the only issue involved was the question of notice of assignment, which the defendant testified he did not receive. After a trial before the court without the intervention of a jury, judgment in the amount prayed was rendered for the plaintiff. The defendant filed a motion for a new trial on the three usual general grounds. To the judgment overruling his motion the defendant excepts.
We must first construe the stipulation. It was to the effect that notice of the assignment to the plaintiff was the only question in the case. This could only mean that the question to be decided was whether the debtor had paid the amount due on the assigned contract to the assignor thereof before notice of the assignment was given to him by the assignee. If the balance sued for was still unpaid and remained due the question of notice would not be an issue because the copy of the suit would have been notice of the assignment. So the answer to the question raised is whether as a matter of law the evidence failed to show notice of the assignment of the account or contract to the defendant. The evidence demands the finding that the defendant received no notice of the assignment. The fact that $650 of the original account was paid to the plaintiff instead of the assignor was indisputably explained in that the assignor directed that this specific payment be made to the plaintiff by the defendant for a specific reason, not for the reason that the account had been assigned. The only evidence tending to show notice of the assignment was a registered letter addressed to the defendant at an improper address, which was delivered to and receipted for by a person signing the receipt as agent for the defendant. The uncontradicted evidence showed that the letter was sent to the wrong address so no presumption arises that it was delivered at the right address. The uncontradicted evidence showed that the person who received the letter and receipted for it was not the agent of the defendant and that the defendant never saw the letter. There are no circumstances shown in the evidence which are inconsistent with the direct and positive testimony of otherwise unimpeached witnesses which shows the above facts. In such circumstances the prior of fact is required to accept the direct and positive testimony. This principle is so well known that we shall content ourselves with one citation. Federal Reserve Bank of Atlanta v. Haynie, 46 Ga. App. 522 ( 168 S.E. 112) and citations.
The court erred in finding for the plaintiff.
Judgment reversed. Frankum and Pannell, JJ., concur.