Constitution Publishing Co. v. Gammon , 74 Ga. App. 380 ( 1946 )

1. The exclusion of the documentary evidence, as complained of in the bill of exceptions, was error.

2. The plaintiff's evidence authorized a verdict in its favor, and the court erred in awarding a nonsuit.

DECIDED OCTOBER 8, 1946. Constitution Publishing Company of Atlanta filed a suit on an open account against Richard Gammon. The petition alleged: On July 10, 1940, the plaintiff and the defendant entered into a written contract, in accordance with the terms of which the defendant became the plaintiff's circulator in Cedartown, Georgia. A copy of the contract was attached to the petition. The defendant continued so to act through November 30, 1942. During the life of the contract, the plaintiff delivered to the defendant copies of the Atlanta Constitution as therein provided. On November 30, 1942, the plaintiff had previously delivered to the defendant, as provided therein, copies of its papers for which it had not been paid by the defendant — the amount due being $729.81. Paragraph 8 of the petition alleged that "subsequent to the termination of said contract, defendant has made certain cash payments on said indebtedness aggregating $246.08, and plaintiff has credited the same, together with an allowance of $11.95, thus leaving a balance of $471.78 principal, which defendant refuses to pay, a statement of charges and credits being hereto attached and made a part hereof." The said statement, including the charges and credits, was signed and sworn to by Fred B. Dunn, who deposed that he was a bookkeeper for the Atlanta Constitution, "and that to the best of his knowledge and belief this is a true and correct statement of the account of Richard Gammon, Cedartown, Ga., and that the amount shown is now due and has not been paid."

The defendant in his original answer, filed on June 29, 1944, admitted that he was a resident of Polk County, Georgia; that on the date alleged in the petition he and the plaintiff had entered into the contract as alleged in the petition; and that after the execution of the contract, the defendant, under the terms of the contract, took over as circulator or dealer in the City of Cedartown, Georgia, and continued as such up to and through November 30, 1942. However, the defendant denied the allegations of paragraphs 6 and 7 of the petition. Those allegations were that the plaintiff, during the life of the contract, had furnished and delivered to the defendant the Atlanta Constitution as provided in the contract, and that when the contract terminated on November 30, 1942, the plaintiff had previously delivered to the defendant copies of said Constitution, as provided in the contract, for which the defendant was due the plaintiff $729.81 — which amount has not been paid.

Although the defendant in that original answer did not denythe allegations of paragraph 8 of the petition, he did file a counter-suit against the plaintiff, in which he alleged: That, after the above-stated contract had been entered into, he was "required" by the plaintiff to perform for it certain other additional services (the services being set forth in the counter-suit), for which the plaintiff promised the defendant to make reasonable allowances therefor; that said services were reasonably worth $600, and the plaintiff refuses to pay said sum, "and should any amount be found to be due by defendant to plaintiff, that plaintiff be given credit for same, and that in such event defendant have judgment for the balance." On November 9, 1944, the defendant filed an amendment to his answer, in which he set up in greater detail his counter-suit, but he did not inthe amendment deny the allegations in paragraph 8 of thepetition. However, on April 3, 1945, he filed another amendment in which he denied such paragraph 8.

On April 3, 1946, the plaintiff amended its petition by attaching thereto, and making it a part of its cause of action, a detailed itemized statement of the claim sued on.

On the trial of the case, after the introduction of evidence for the plaintiff, the court, on motion of the defendant, granted a nonsuit and dismissed the case, and that judgment is assigned as error. Error is also assigned in the bill of exceptions upon the exclusion of certain documentary evidence offered by the plaintiff. 1. On the trial, H. F. McConnell, a witness for the plaintiff, testified as follows: "In 1942 I was office manager of the plaintiff's circulation department and was in charge of circulation outside the City of Atlanta. I know the defendant. This is his ledger account, it shows the charges and credits on his account and the balance due, and covers the months of October and November, 1942. That account has not been paid, the balance due on it is $471.78. That is the original entry. I am not the bookkeeper. The boy who made those entries is in Germany. I supervise this work. I have to watch these accounts and handle their collection. These sheets I hold in my hand are the books of original entry covering this account sued on here. I was there at the time these entries were made. This sheet that I have identified, the books of original entry, was made up from the record from our mailing room, showing how many papers were sent to the dealer every day. That was made in my office, under my supervision. I am office manager and have charge of all of this work." After the above-quoted testimony was given, the court refused to allow the plaintiff to introduce in evidence the above-referred to sheets identified by the witness McConnell.

We think that, under the facts of the case, the documentary evidence was admissible for the purpose of corroboration; and the court erred in rejecting it. "The books of the bank showing the plaintiff's account with the bank were properly admitted in evidence for the purpose of corroboration, and the court did not err in admitting the books over the objection that the cashier who kept the same was absent and was not introduced to prove the books, although he was accessible." Edenfield v. Youmans,30 Ga. App. 654 (3) (119 S.E. 342). "As a general rule, the testimony of persons who have knowledge of the facts from which the books are made up is, as to those facts, primary evidence, and the books themselves are admissible only by way of corroboration." Harper v. Hammond, 13 Ga. App. 238 (3), 240 (79 S.E. 44); Christopher v. Georgian Co., 22 Ga. App. 707 (3) (97 S.E. 97); Dixon v. Sol Loeb Co., 31 Ga. App. 165 (9) (120 S.E. 31).

2. During the trial, the plaintiff put the defendant on the witness stand and cross-examined him. That testimony of the defendant was vague, uncertain, and self-contradictory, contained several admissions which tended to corroborate the other evidence for the plaintiff, and tended to show the defendant's liability for the account sued on.

Furthermore, the plaintiff put in evidence paragraph 8 of the original petition (which was the heart of the cause of action against the defendant), and the original answer of the defendant, for the purpose of showing that the allegations of said paragraph were not denied in the original answer. Any material averment in a petition, "which is not denied by the defendant's answer, shall be taken as prima facie true, unless the defendant shall state in his answer that he can neither admit nor deny such averment because of the want of sufficient information." Code, § 81-103. It is true that the defendant in an amendment denied said paragraph of the petition, but that amendment was not introduced in the evidence, and pleadings not so introduced are not evidence.

In our opinion, the evidence for the plaintiff made out a prima facie case, and the award of a nonsuit was error.

Judgment reversed. MacIntyre and Gardner, JJ., concur.