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SOUTHEASTERN WHOLESALE FURNITURE CO. v. ATLANTA METALLIC CASKET CO.; and vice versa.
34603.
34606.
Action on contract. Before Judge Etheridge. Fulton Civil Court. February 16, 1953.
QUILLIAN, J.
1. No harmful error is shown in the admission of the evidence as complained of in the first special ground of the motion for a new trial.
2. The charge complained of in the second special ground of the motion was not erroneous for any of the reasons assigned.
3. The evidence supported the verdict in favor of the plea of no partnership or no such joint venture.
4. The questions raised by the cross-bill of exceptions are not considered.
This is the third appearance of this case before this court. For a detailed statement of the pleadings and contentions of the parties, see Southeastern Wholesale Furniture Co. v. Atlanta Metallic Casket Co., 84 Ga. App. 271 (66 S. E. 2d 68). Southeastern Wholesale Furniture Company sued Atlanta Metallic Casket Company on a claim for damages, and alleged that the defendant was liable thereon by reason of its doing business under the name of Cannon & Company and as such engaging in a joint enterprise or joint venture having the attributes of a partnership with a firm by the name of Calimode, Incorporated. The defendant filed a special plea of "No such partnership and no such joint venture," and it was agreed between the parties that the issues raised by that plea would be tried first before a jury, and separately from the issues in the main case. Upon the trial of that issue alone, the verdict was in favor of the plea, and the judge entered judgment in favor of the defendant, and dismissed the case. The plaintiff made a motion for new trial on the usual general grounds and amended it by adding two special grounds; and to the order denying that motion it excepted by direct bill of exceptions to this court. By cross-bill of exceptions the defendant excepts to certain orders of the trial court overruling general and special demurrers of the defendant.
1. The first special ground of the motion for new trial complains because the court permitted counsel for the defendant to ask a witness for the defendant, who had been qualified as a certified public accountant, whether from the witness's examination of the books of account of the defendant they indicated any sharing of profits or partnership arrangement between the defendant and Calimode, Incorporated, and permitted the witness to answer: "The books and records that I examined did not indicate any sharing of profits or partnership arrangement between these two parties." It is contended that this evidence was material and highly prejudicial and hurtful to the movant because, as movant contends, said evidence admitted opinion testimony in the form of a conclusion of law as to whether or not there was a division of profits or a partnership arrangement between the plaintiff and the dcfendant, and because this was an invasion of the province of the jury upon the sole vital issue of the case, as raised by the defendant's plea, namely that no joint venture existed.
This evidence was not objectionable for the reason assigned insofar as it stated that the books did not indicate any sharing of profits. This is because the evidence was objected to as a whole, and a portion of it was admissible. When, as in this case, a single sentence objected to is in part admissible the objection cannot be sustained. Calloway v. State, 20 Ga. App. 189 (1) (92 S. E. 944); City of Atlanta v. Feeney, 42 Ga. App. 135, 136 (1) (155 S. E. 370).
Under numerous decisions of both appellate courts of this State, if the books and papers referred to by one qualified as an expert bookkeeper and auditor are in court and available to the parties to the case, such witness quay express his opinion in the form of a conclusion as to what facts the books show; and there is nothing to indicate that the books and papers to which the auditor in this case referred were not available to the parties and in court at the time the witness testified. An expert in regard to the field of bookkeeping may from calculations testify what various entries disclose as to whom profits were or were not distributed and as to whether the profits were divided among or shared among the parties to the case, just as such witness might testify to whom money was paid from different designated accounts shown by the various books kept by the parties to the case or either of them. Lewis v. State, 82 Ga. App. 280 (60 S. E. 2d 663).
The testimony of a witness so qualified by training, knowledge, and experience in the occupation of all auditor or bookkeeper as to be considered an expert, is admissible to show that entries in the books did not indicate that profits were divided among or shared by the parties to the case, if this be a relevant fact that would throw light upon the issues in the case. The above holding does not mean that the witness could testify that the books indicated a joint enterprise or partnership. The witness could testify to the facts indicated by the books, but not as to the existence of any legal status that they, in his opinion, indicated.
2. The second special ground of the motion for new trial complains of the folldwing portion of the chnarge of the court: "You understand, gentlemen, that before the plaintiff, Southeastern Wholesale Furniture Company, would be allowed to come into court and state what damage, if any, they suffered, and how they suffered it, and all the various details as to liow they have been damaged, if they have, they have first got to show they have a right to sue this defendant. This defendant says: 'You have no right to sue me. I wasn't in partnership and had no such arrangements as would form a joint enterprise or a joint venture that would make me liable to you.' The defendant in effect says: 'If you have any liability it is to the person who sold you these furnaces. He was merely a customer of mine. I was selling to him furnaces and at a specific designated price he was supposed to pay me for them, and he assigned me the accounts so I could be sure of getting my money. I have no responsibility to you in any way. You have no trade with me.' "
This portion of the charge was not subject to the criticism that it resolved the defendant's evidence most favorably to the defendant, where the evidence of the defendant was self-contradictory and in some instances diametrically opposite to the analysis contained in the charge. We have examined the evidence in this case with much care, and without going into an extensive review thereof, we may say that we find that it amply supports the view that the defendant and Calimode were not engaged in a joint venture. The defendant's principal contention was that it was merely an independent contractor for Calimode, building the furnaces designed by Calimode to Calimode's specifications and receiving from Calimode an agreed price for each furnace so built. While the characterization of the defendant's contentions in the charge complained of is perhaps in not as precise legal language as it might have been, it is not subject to the criticism that it misstated these contentions or overemphasized the defendant's evidence that was most favorable to the defendant while ignoring that which was unfavorable. The second special ground of the motion for new trial is without merit.
3. As indicated above, the evidence amply supported the verdict for the defendant on its plea of no partnership or no joint venture, and the trial court did not err in overruling the motion for new trial on the general grounds.
4. Having held that the motion for new trial by the plaintiff was properly overruled, it is unnecessary to pass on the issues raised by the cross bill of exceptions, and the same is dismissed.
Smith, Kilpatrick, Cody, Rogers & McClatchey, A. G. Cleveland, Jr., contra.
Johnson, Hatcher, Rhudy & Meyerson, for plaintiff in error.
DECIDED NOVEMBER 20, 1953.
Saturday May 23 04:25 EDT


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