Opinion
34290.
DECIDED NOVEMBER 13, 1952.
Complaint; from Fulton Civil Court — Judge Parker. August 11, 1952.
John H. Hudson, J. Walter LeCraw, for plaintiffs in error.
Benton E. Gaines, Bartow Cowden III, contra.
1. The trial judge did not abuse his discretion in limiting the cross-examination of the credit manager of the plaintiff corporation to transactions between the representatives of the plaintiff and the defendants on the subject of a trade custom, there being no attempt to show that such custom was so universal in the trade as to become a part of the contract by implication, under Code § 20-704(3), but, on the other hand, the attempt was to show only that the plaintiff corporation practiced the custom with others than the defendants.
2. Admissions in the answer of allegations in the petition are taken as true. Accordingly, where two or more individuals are sued jointly in connection with the operation of a business under a trade name, and such individuals file an answer admitting that they jointly operate such business, file no plea of nul tiel partnership, but on the contrary file a joint answer as partners, and the petition is later amended alleging such partnership, the defendants by their pleadings have admitted the existence of such partnership and are estopped to produce evidence to the contrary.
3. The evidence supported the judgment and, no error of law appearing, the discretion of the trial court in overruling the motion for a new trial will not be disturbed by this court.
DECIDED NOVEMBER 13, 1952.
Wright Company Inc. filed suit in the Civil Court of Fulton County against "John N. Petkas and Steve N. Petkas, individually and doing business as Showboat," alleging, in paragraph 3, that "the defendants operate Showboat, a restaurant located at 986 Peachtree St., N.E., Atlanta, Ga." The petition sought to recover an indebtedness of $339.34 plus interest and attorney fees, as evidenced by a note and conditional-sales contract signed, "Showboat, by John N. Petkas," and a further open account indebtedness of $260 plus interest. Three answers were filed. One, denominated "Answer of John N. Petkas and Steve N. Petkas, as partnership," recited, "Now come the above defendants as partners, insofar as they are sued jointly as a partnership, and make this answer," in which the allegations of paragraph 3 were admitted. Steve Petkas filed an individual answer reciting: That he "makes this answer individually in addition to the answer that he has made in the name of the partnership sued"; that he "was not a partner to John N. Petkas at the time shown on said contract as the time of its signing, to-wit, August 29, 1950, and was not a partner in the making of said contract. This defendant therefore is not responsible for the amount of said note, $339.94, [and] as to the balance of the allegations of said petition this defendant adopts the answer of the said partnership relating to the open account claimed." The defense set forth against the open account was that the plaintiff had agreed to take back a portion of the goods sold and not used, but had not done so. A third answer was filed by John Petkas individually, which also admitted paragraph 3, "that they are at present operating the restaurant named," admitted the signing of the note, but alleged that he did so for himself alone, and that the defendant Steve Petkas did not become obligated thereon; admitted notice of intention to sue, and, in defense against the open-account indebtedness, also set out an oral agreement entered into on May 22, 1951, between the parties to take back certain goods, and a tender of the balance owing when this should have been done and credit extended. Prior to the trial, the plaintiff amended by adding a new paragraph 3-A as follows: "The defendants, John N. Petkas and Steve N. Petkas operate and conduct, as a partnership enterprise, a restaurant . . registered under the name and trade style of `Showboat' on July 24, 1950, and were operating said partnership enterprise from said date of registration."
Upon the trial of the case before the judge without the intervention of a jury, the evidence was undisputed that John Petkas signed the note in question before his brother, Steve, actively entered the business, and, as to this item, the court found against John Petkas only. The trade-name registration referred to in the plaintiff's amendment was introduced, and the evidence also demanded a finding that Steve Petkas was working with his brother at least from January 6, 1951, when the restaurant was opened to the public, and for several months thereafter. The evidence conflicted as to whether the agreement on the part of the plaintiff to take back several boxes of supplies amounting to $327 was dependent on a condition precedent to the effect that the defendants first pay the balance owed if such goods were to be repossessed; and the judge was authorized to find that this was the case, and that the condition precedent had not been met, for which reason the oral contract never became effective. Judgment was entered against the defendants jointly on the open-account indebtedness and against John Petkas individually for the amount of the note with interest and attorney fees.
The defendants filed a motion for a new trial, which was later amended by adding two special grounds. This motion was overruled, and error is assigned thereon.
1. Error is assigned in the first special ground of the amended motion for a new trial on the action of the court in restricting cross-examination of a witness for the plaintiff who was credit manager for the plaintiff corporation. The question, "Isn't it true that your company has had a practice of picking up articles when restaurant people find they don't need them?" was disallowed, and the ruling was to the effect that evidence of a custom of the plaintiff corporation of picking up articles not used by the purchaser would be limited to dealings between the plaintiff and defendants, in the absence of a proper foundation showing that such a custom was universal to the trade in that area.
The cross-examination, as limited by the court, was properly admitted in view of paragraph 8 of the answer of John Petkas, that "a custom of making such oral agreements had arisen between plaintiff and defendant." It was not alleged that the custom was one which the plaintiff exercised in general, or that it was a general custom of the trade, as provided in Code § 20-704(3), nor was evidence of such custom offered. As stated in Robertson v. Wilder Co., 69 Ga. 340 (2a): "Individual habits of dealing do not make a universal custom which by implication enters into the contract and forms a part thereof." In Atlanta West Point R. Co. v. Holcombe, 88 Ga. 9, 11 ( 13 S.E. 751) it was stated: ". . it would not be proper, as a general rule, to admit independent testimony as to what was or was not the habit of a person or corporation with reference to a given subject." Consequently, the court having allowed evidence as to customs in the dealings of the plaintiff and defendant with each other, it did not err in excluding evidence as to the plaintiff's individual habits of dealing in regard to third persons, as this would be of little value, either probative or impeaching, insofar as the case at bar is concerned. This assignment of error is without merit.
2. The second special ground contends that there is no evidence of a partnership. Admissions in the answer of allegations in the petition are to be taken as true. Code, § 81-103. The word "Showboat" is a trade-name, and as such could refer to either a person, firm, or corporation. However, a petition alleging that the defendants John and Steve Petkas operate a restaurant known as "Showboat" denotes an intention, in the absence of any other explanation, to sue them as partners. See Dublin Southwestern Ry. Co. v. Akerman Akerman, 2 Ga. App. 746 ( 59 S.E. 10). It was admitted by the defendants in their pleadings that they jointly operated the restaurant. They filed no plea of nul tiel partnership, as required by Code § 75-313. On the contrary, an answer was filed by the defendants as partners "Insofar as they are sued jointly as partners." By amendment the plaintiff later set up an express allegation of partnership as evidenced by the trade-name registration in accordance with Code § 106-301. No answer, of course, was required to this amendment. Cook v. Cochran, 42 Ga. App. 478 ( 156 S.E. 465). The case stood for trial under the pleadings, however, with no issue made as to whether a partnership did or did not in fact exist. The defendants, by their pleadings having admitted such joint operation by them of the restaurant as amounted to a partnership, were bound thereby, and, so long as those admissions remained unstricken, were estopped to produce evidence to the contrary. Wofford Oil Co. of Ga. v. Story, 52 Ga. App. 496 ( 183 S.E. 840); American National Ins. Co. v. Lynch, 49 Ga. App. 580 ( 176 S.E. 546); New Zealand Ins. Co. v. Brewer, 29 Ga. App. 773 ( 116 S.E. 922); Smith v. Vestal Lbr. Mfg. Co., 202 Ga. 360 ( 43 S.E.2d 163). In addition to the pleadings there was the undisputed evidence that the two men had both been engaged in the operation of the restaurant, and the trade-name registration entered by John Petkas in which he showed himself and his brother as joint operators. The court was therefore authorized to find that a partnership existed at the time the open-account indebtedness was incurred, although it also found that the partnership did not exist at the time of the conditional-sales contract, for which reason John Petkas alone was liable on the note.
3. The evidence authorized the trial judge, sitting without a jury, to find against the defendants' plea of a subsequent agreement between themselves and the plaintiff to accept the return of a part of the merchandise. He was also authorized to find against the defendants judgments in the amounts rendered.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.