Opinion
34072.
DECIDED JUNE 19, 1952. REHEARING DENIED JULY 3, 1952.
Complaint; from Fulton Civil Court — Judge Parker. February 11, 1952.
Marshall, Greene, Baird Neely, for plaintiff in error.
Hudson LeCraw, John H. Hudson, contra.
1. The evidence did not demand a verdict for the defendant on the general grounds.
2. The special grounds of the amended motion for a new trial are without merit for the reasons set out in the second division of the body of this opinion, in which each special ground is dealt with specifically.
DECIDED JUNE 19, 1952 — REHEARING DENIED JULY 3, 1952.
The defendant in error, Russell Pruitt (whom we shall call the plaintiff) sued J. W. Brand, the plaintiff in error (whom we shall call the defendant). The petition, omitting the formal parts, alleges in paragraph 2 that the defendant was indebted to the plaintiff in the amount of $2000 besides interest, for money had and received. It is alleged in paragraph 3: "The petitioner deposited the sum of $2000 in cash with the defendant to be used by the defendant in the purchase of a trailer and tractor for the uses and purposes of the plaintiff." In paragraph 4 it is alleged that the defendant had never purchased the equipment, and fails and refuses to purchase it and fails and refuses to refund the $2000 to the plaintiff. Paragraph 5 alleges a demand by the plaintiff for the money for which suit is brought and a failure and refusal on the part of the defendant to comply with the demand.
The defendant admitted his residence and the jurisdiction of the court, alleged in paragraph 1 of the petition. He denied the allegations of paragraphs 2, 3, 4, and 5. The jury returned a verdict in favor of the plaintiff. The defendant filed his motion for a new trial, and thereafter amended it by adding six special grounds. The court denied the motion, and error is assigned on this judgment.
The evidence developed at the trial shows substantially that the plaintiff approached the defendant in January, 1950, for the purpose of purchasing a tractor and trailer; that he paid the defendant $2000, and received from the defendant a receipt as follows: "January 24, 1950 — received of Russell Pruitt of Gainesville, $2,000.00 on one Great Dane Trailer and International tractor. [Signed] J. W. Brand." This receipt was introduced in evidence without objection. The defendant stated that Brand Brothers and no one else was mentioned as having any interest in the equipment. The defendant stated that he was getting out of the trucking business and wanted to sell the equipment. The defendant stated that the equipment was not running right. That a man drove the equipment in and it was "cutting up." The defendant said, "Leave it and we will have it fixed the next morning." After considerable work on the equipment, it could not be or was not put in order, and during the process of attempting to fix it, it burned, and the defendant refused to return the plaintiff's money to him after the plaintiff made demand for it. The plaintiff was to haul onions for the defendant with the equipment. A friend of the plaintiff and of the defendant, Glenn Wallace, had known the defendant longer than the plaintiff. The plaintiff talked to the defendant in the defendant's place of business. Brand Brothers was shown on a sign on the door of the place of business, and the door of the equipment had Brand Brothers painted on each piece. The defendant was going to check the financial condition of the plaintiff. The defendant stated that he, the defendant, owned the equipment. Mr. Brand did say that Brand Brothers was going out of the large trucking business because of the weight limitation, and said that he was selling his, the defendant's, equipment. The equipment was to cost the plaintiff $7000. The plaintiff did not make any actual investigation as to who owned the equipment. After the equipment burned and wrecked, the defendant told the plaintiff: "You just keep quiet. You will get your money back. You won't lose anything. The insurance will pay me this." It further appears that the defendant told the plaintiff in substance that the insurance company had paid the defendant, and that the insurance company was holding the plaintiff's money. Then it appears from the evidence of the plaintiff that Glenn Wallace informed the plaintiff that Mr. Brand was wanting to sell the equipment. Mr. Wallace testified substantially that he had known Mr. Brand and Mr. Pruitt for a long time; that he had known Mr. Pruitt for about twenty five years and Mr. Brand for ten or twelve years. Mr. Wallace said that plaintiff paid the defendant $2000 and gave the plaintiff the receipt for it. Wallace stated that there wasn't any statement made as to who owned the equipment prior to his (the plaintiff's) paying the $2000. Wallace further testified "Bill [meaning the defendant] said he had three or four more trucks, that `I am going to sell them all and hire my hauling done'." Wallace stated in substance that he knew the defendant had some brothers, but that he did not know whether or not they had two places of business, and did not know whether or not the defendant operated an independent produce business; that he did not know anything about the defendant's business.
Mike Whitmire testified substantially: that he knew both the plaintiff and the defendant; that he went with the plaintiff to see the defendant concerning the equipment in question, and stated that he and the plaintiff made two or three trips to see the defendant; that the defendant stated that he would sell the plaintiff two trucks if the plaintiff wanted them; that the defendant expected to sell all of the trucks; that the defendant stated during the conversation that he would put the equipment in good condition; that the witness was with the plaintiff every time the plaintiff went to the defendant with reference to the equipment; and that the defendant never mentioned Brand Brothers; that the witness never paid any attention regarding the sign "Brand Brothers"; that the witness took no notice of the sign "Brand Brothers," and that he went with the plaintiff and the defendant stated, "I will sell you a truck."
The defendant stated substantially: that he was president of Brand Brothers, a corporation; that he did not own the equipment; that the equipment was used in connection with the business of Brand Brothers; that he had not known the plaintiff before the transaction; that Mr. Wallace brought the plaintiff to the defendant a week or ten days, or perhaps longer, before the transaction; that at the time of the transaction the plaintiff and Whitmire and Wallace were present; that they looked at the equipment in question and the plaintiff decided he would buy it. The defendant stated that he talked to the plaintiff about hauling for Brand Brothers, and stated that Brand Brothers "Does our hauling." The defendant stated that he told the plaintiff that the plaintiff would have to make a $2000 down payment on the equipment, and that, of course, this was subject to the plaintiff's credit being good; that the plaintiff gave the defendant $2000 on the equipment; that, when the plaintiff first offered the defendant the $2000, the defendant did not want to take it until the plaintiff's credit had been approved, but that he did take the $2000 as deposit on the equipment; that the $2000 was in cash, "which I received"; that, at the time the defendant received the $2000, he signed the receipt in question.
1. It will be noted that the defendant's defense is a general denial. He does not seek any affirmative relief nor does he vouch anyone into court so far as his defensive pleadings are concerned, but he denies in his defense everything in the petition except the residence of the defendant and the jurisdiction; and, so far as the general grounds are concerned, the evidence is sufficient to sustain the verdict. A verdict was not demanded for the defendant.
2. (a) Special grounds 1, 2, and 3 of the amended motion assigned error on the exclusion of certain evidence to the effect that the plaintiff either knew, or should have known, that he was not dealing with the defendant individually with respect to the equipment, but that he was dealing with the defendant as an officer and agent of Brand Brothers. The evidence in special ground 1 was with respect to Brand Brothers' listing in the telephone book. Special ground 2 deals with evidence as to the existence of the words "Brand Brothers" on the door of the equipment in question; and special ground 3 deals with the question as to whether the equipment was actually registered and licensed with the State in the name of "Brand Brothers." We think that the court properly excluded this, under the petition and answer in this case. We think that the evidence was immaterial and irrelevant and aside from the issue made by the pleadings.
(b) Special grounds 4, 5, and 6: Special grounds 4 and 5 deal with the exclusion of the record of Brand Brothers showing that the $2000 in question was placed on the books of Brand Brothers some time after the day it was received from the plaintiff by the defendant. Special ground 6 deals with the exclusion of the charter of Brand Brothers. We cannot see how the court could have properly allowed this evidence, under the pleadings in this case. Just why should this be admissible in this case under the pleadings? The evidence shows that the truck was wrecked and destroyed before it was delivered in good order to the plaintiff and before his credit was approved. It seems that, if the defendant had received this $2000, as he did, and never delivered the equipment to the plaintiff, according to the terms of the contract made between the plaintiff and the defendant, the defendant could not escape liability on the ground that he was acting all through the transaction as the alter ego or agent for Brand Brothers. He did not mention any of these things in the receipt when he received the $2000 cash. Neither did he mention any of these things in his answer. The equity of the whole thing appears to us to be that in equity and good conscience the defendant should not be allowed to evade liability by seeking to palm off on the plaintiff a third party unknown to the pleadings and to the receipt which the defendant filed and signed and issued respectively. It might be that such third party was not able to respond to the pleadings. While this may be speculative, in our opinion it is not more remote or speculative than the method of evasion of liability which the defendant seeks to inject into the situation. In this connection, counsel for the defendant have called our attention to the case of Kenny v. Walden, 28 Ga. App. 810 ( 113 S.E. 61). The defendant quotes somewhat extensively from this decision, but upon reading it, we find from the first part of the first sentence this: "It is the general rule that a proper payment to the authorized agent of a disclosed principal," etc. There is no disclosed principal in this case. That is one of the questions the jury were to determine, and they determined it adversely to the defendant. It is true that it is contended in these special grounds that the plaintiff knew, or ought to have known, that the defendant was acting for Brand Brothers, but the evidence in this record is not sufficient to show that the principal was disclosed.
In our opinion this case is controlled in principle by Massee v. Stetson, 27 Ga. App. 89 ( 107 S.E. 362). There, as here, there was only a general denial, and there, as here, the court refused to admit testimony seeking to bring in new matter not authorized by the defense of a general denial.
The court did not err, for any of the reasons assigned, in denying the motion for a new trial as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.