Opinion
42664.
ARGUED MARCH 7, 1967.
DECIDED APRIL 18, 1967.
Action on open account. Fulton Civil Court. Before Judge Williams.
Troutman, Sams, Schroder Lockerman, Harold C. McKenzie, Jr., Gerald P. Thurmond, for appellant. Lipshutz, Macey, Zusmann Sikes, J. Timothy White, for appellees.
The evidence authorized the verdict for the plaintiffs and the trial judge did not err in entering judgment accordingly and in overruling a motion for a new trial.
ARGUED MARCH 7, 1967 — DECIDED APRIL 18, 1967.
This is an action on an open account by Jack C. Stein et al., d/b/a Stein Printing Company, a partnership, against the Dinkler Management Corporation, for the printing of various menus for use by the Lucayan Beach Hotel in the Grand Bahamas.
At the outset the parties stipulated that no issue existed as to the amount due, and that "[t]he only matter that creates a question of fact is whether or not the work was done for the defendant . . . or for a third party." Counsel also agreed to a substitution of the Dinkler Management Corporation in lieu of the original defendant, the Dinkler Hotel Corporation of Georgia.
Roy Kaye, a salesman for the plaintiffs, testified that during the early part of October, 1964, he dealt on one or two occasions with Joseph Storino, food and beverage manager of the Dinkler [Plaza] Hotel in Atlanta, who informed him that he was preparing menus for the Lucayan Beach Hotel, and that subsequently Carling Dinkler, Jr., president of the hotel, and another, the plaintiffs' creative art director, joined them to work out details. Except as stated, he was not informed that he was doing work for the Lucayan Beach Hotel, and in his conversations with Mr. Storino he never inquired as to which corporation to invoice, or for which corporation the work was being done. Having been called to the hotel in Atlanta, and having dealt with officials there, he assumed that Dinkler would be responsible. The witness identified three menu cards printed for use by the Lucayan Beach Hotel as a result of these conferences. On one of these cards, the notation, "A Dinkler Operation," appears, and on the other two the notation, "A Dinkler Hotel Operation," appears. The name "Lucayan Beach Hotel" appears only on one of the cards. This witness did not recall whether Mr. Storino told him to include an invoice with the shipment, but if he had told him this, the witness would have questioned it, because his company did not deal with foreign organizations. There was a discussion about shipment to some place in Miami, and when the shipment was ready Mr. Storino outlined to him a shipment to Miami for further shipment to Lucayan Beach, and he furnished the information to the delivery department. Mr. Storino did tell this witness that a duplicate copy of the invoice had to accompany the menu cards, in order to clear customs, but he did not state whose name should appear on the invoice. The witness did not remember but imagined that he, and not Mr. Storino, was responsible for the Lucayan Beach name appearing on the invoice. Having heard Mr. Storino testify, infra, he reiterated that Mr. Storino never told him not to bill any of the Dinkler corporations. His recollection as to when any invoice was mailed directly to the Lucayan Beach Hotel was that it was after collection was not effected through Dinkler.
Cecil G. Reid, plaintiffs' controller, testified that the work was completed on December 11, 1964, and that he sent invoices to Dinkler in Atlanta in December, 1964, and January and February, 1965, and that after receiving a telephone call on March 30, 1965, from someone purporting to represent Dinkler, he sent a number of monthly statements to the Lucayan Beach Hotel. He could not state whether an invoice addressed to the Lucayan Beach Hotel, Freeport, Grand Bahamas, dated December 11, 1964, and marked as a duplicate invoice, was included with the menu cards which were shipped there in December, 1964. He identified another invoice as one he caused to be issued on March 30, 1965, to the Lucayan Beach Hotel, with a covering letter seeking payment, after receiving the telephone call from someone at Dinkler. On the same date he issued a credit memorandum to Dinkler. After this he made a series of telephone calls to the Lucayan Beach Hotel in an effort to collect the account, but stopped without instituting legal action in the Bahamas after being informed that the hotel was under a new management.
John Willis Moore, Jr., sales manager for the plaintiffs, and a partner, approved credit for the account based on information he obtained from Roy Kaye, which led him to believe he was dealing with the hotel in Atlanta. He had a policy of not approving credit transactions outside of the United States and of not doing business with anyone in southern Florida or the Caribbean because of past credit problems. If there was any inquiry by Stein as to responsibility when the order was placed, it was made by Mr. Kaye. This witness was not aware of the Dinkler corporate structure.
Joseph S. Storino identified himself as a vice president and director of food and beverages for the Dinkler Hotel Corporation in 1964, one of three Dinkler corporations. One of his responsibilities was purchasing menu cards for Dinkler operations all over the country and the Lucayan Beach Hotel in the Bahamas. Out of 54 hotels there were only ten or twelve which had food operations. Many had food facilities leased to others and he had no responsibilities with respect to these operations. The Dinkler Management Corporation managed the Lucayan Beach Hotel. He recalled his conferences with Mr. Kaye concerning the menu cards. He instructed Mr. Kaye to ship the menus to the Lucayan Beach Hotel and to include an invoice because the billing was to be made to the Lucayan Beach Hotel, and Dinkler Management Corporation was not involved. Unless an invoice was included the shipment would not clear customs. Later, on cross examination he stated that these instructions included the mailing of another invoice directly to the hotel in the Bahamas. He never told Mr. Kaye or anyone at Stein that the Dinkler Management Corporation or the Dinkler Hotel Corporation of Georgia would be responsible. On cross examination he added that his instructions included a statement that Dinkler was not responsible, as Dinkler was involved strictly on a management basis. He saw an invoice two or three months after the cards were shipped.
E. M. Turlington identified himself as the senior vice president and secretary of Dinkler Management Corporation, and as an employee of other Dinkler activities. He explained that the Dinkler Management Corporation provided management services for hotels for various fees, and that this service included use of the Dinkler name, but that Dinkler bought in the name of the owners and did no buying on its own account for managed property. In the case of the Lucayan Beach Hotel the management corporation contracted in the name of the hotel for merchandise and supplies, and employed a manager, auditor, chef, and food man, all of whom were on the payroll of the managed hotel. Dinkler fees were a percentage of the gross revenue. Dinkler employees had no control of the hotel funds. He learned that Stein asked Dinkler to pay a bill around March 1965. He advised Stein to bill the Lucayan Beach Hotel and offered to help collect the bill. He received an invoice and mailed it to the hotel with a notation on it. The first bill he ever saw was dated March 30, 1965. Any bill received by the auditor at the hotel in Atlanta or one of the other corporations which was not proper most likely would have come to the witness for handling. The Dinkler Hotel Corporation of Georgia, which operates the Dinkler Plaza Hotel in Atlanta, and the Dinkler Management Corporation occupy adjoining buildings, and personnel of each are in constant contact with the other.
The jury found for the plaintiffs, and the defendant appeals from the judgment entered thereon and the overruling of its motion for new trial.
"It is well established under the common law that, where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it, and one who performs personal services at the request of the agent, who fails to disclose his principal for whom the request is made, may recover from the agent, where he so elects, or he may proceed against the principal, when made known, should he not elect to proceed against the agent." Roberts v. Burnette, 72 Ga. App. 775, 777 ( 35 S.E.2d 201). The party with whom an agent contracts, without disclosing his principal, may treat the agent as the principal, and elect to proceed against the agent as such in lieu of the principal, but he may not proceed against the two jointly. See Code § 4-305; Washburn Storage Co. v. Elliott, 93 Ga. App. 456 (3) ( 92 S.E.2d 28). If credit is given to the agent by choice of the seller, the seller may not afterward demand payment by the principal. Code § 4-306. Where the agency is known, and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case. Code § 4-406. "What was the understanding of both parties is a question of fact to be decided by the jury." Chambliss v. Hall, 113 Ga. App. 96, 100 ( 147 S.E.2d 334).
Applying these principles of agency to the evidence, we find no merit in any of the contentions of the defendant. The fact that the name "Lucayan Beach Hotel" appeared on at least one of the menus does not necessarily establish an agency-principal relationship when the same menu shows the notation "A Dinkler Hotel Operation," another shows the identical notation, and a third shows, "A Dinkler Operation." These notations were at least as likely to lead the plaintiffs to believe that Dinkler was operating the activity as a principal instead of as an agent, and while it may be obvious that the plaintiffs' salesman knew that the menus were for the Lucayan Beach Hotel, this knowledge does not mean that he knew or should have known of the agency-principal relationship. Whether to believe the salesman or the food and beverage manager as to what was disclosed in conversations between the two was for jury determination, and if the jury believed the salesman, the true relationship between Dinkler Management Corporation and the Lucayan Beach Hotel was never disclosed. It is also shown by the evidence of the billing for three months to Dinkler that the plaintiffs originally elected to extend credit to Dinkler and no one else, and that the credit memorandum was issued to Dinkler only after Dinkler had affirmatively disclosed the agency-principal relationship. This after-the-fact disclosure of the relationship, and the subsequent futile efforts by the plaintiffs to collect from the principal, would not operate to deprive the plaintiffs from relying on their original course of action in looking to the agent for payment. The credit memorandum did not operate as a waiver, and fails as an accord and satisfaction in the absence of any consideration.
The evidence is in conflict on the stipulated issue of whether the printing was done for the defendant or for a third party. This issue was decided in the plaintiffs' favor and since the evidence authorized this finding the trial judge did not err in entering judgment accordingly, and in overruling the motion for a new trial.
Judgment affirmed. Bell, P. J., and Pannell, J., concur.