Opinion
45623.
ARGUED SEPTEMBER 17, 1970.
DECIDED SEPTEMBER 30, 1970.
Third-party complaint. Fulton Civil Court. Before Judge Wright.
Peek, Whaley Haldi, Glenville Haldi, for appellant.
N. Forrest Montet, for appellees.
In this case the trial court granted a motion for directed verdict against a third-party defendant, who appeals from the judgment rendered thereon. Bankhead Cabinet Company sued Gary H. Morgan, the owner of certain real property, for certain cabinets used in the construction of a home for the defendant Morgan. Thereafter Morgan brought the defendant, Frank F. Farris, Jr., into the case as a third party, alleging Farris had served as the general contractor during the construction of the defendant's house; that Farris had been paid for these cabinets, but failed to pay the plaintiff. Farris denied that he had been paid for the cabinets and maintained that the cabinets had been purchased directly by the defendant Morgan, which represented a separate transaction between them. Based upon the fact that the defendant Farris had listed the cost of these cabinets in an "account" book, and by affidavit at a closing of a loan swore that he had been paid in full for the completion of said improvements, the court directed the verdict against Farris. Held:
The evidence as to whether or not these particular cabinets were a part or parcel of the contract by and between the defendants for the construction of a dwelling was in conflict. There was no written contract, and the parties thereto differ as to the terms of their agreement. All the documents submitted in evidence, including the so-called "account" book for the "Morgan job" and the affidavit executed by the defendant Farris on the final disbursement of the loan, were insufficient to demand a judgment against Farris. Hunter v. State, 43 Ga. 483 (2); Bivins v. State, 200 Ga. 729, 741 ( 38 S.E.2d 273); Gazaway v. State, 15 Ga. App. 467 ( 83 S.E. 857); Henderson v. Cook, 27 Ga. App. 512 ( 108 S.E. 904); Young v. Kendrick, 89 Ga. App. 547 ( 80 S.E.2d 201); Maryfield Plantation, Inc. v. Harris Gin Co., 116 Ga. App. 744, 745 ( 159 S.E.2d 125). Accordingly, jury issues remain for determination.
Judgment reversed. Hall, P. J., and Deen, J., concur.