Opinion
38741.
DECIDED FEBRUARY 27, 1961.
Action on account. Fulton Civil Court. Before Judge Wright.
Carpenter, Karp Mathews, Ferrin Y. Mathews, for plaintiff in error.
Jones, Bird Howell, Trammell Vickery, Eugene T. Branch, contra.
The evidence being sufficient to support the verdict for the plaintiff in the full amount of the claim, the judgment of the court denying the defendant's motion for a new trial on the general grounds only was not error.
DECIDED FEBRUARY 27, 1961.
Westinghouse Electric Corp., as assignee of Westinghouse Electric Supply Co., hereinafter called the plaintiff, filed suit on an open account in the Civil Court of Fulton County against Joseph Rinzler d/b/a Waco Appliance Stores, hereinafter called the defendant, to recover the sum of $11,986.74 plus interest at 7 percent from July 17, 1957.
The defendant filed an answer in which he admitted the purchase and receipt of the items forming the basis of the open account suit, alleging, however, that he was entitled to a credit of $11,194.25 under an agreement whereby he was to be paid 50 percent of his advertising costs whenever he advertised the plaintiff's products. By amendment, he further alleged that he entered the appliance business on promise of the plaintiff's assignor to pay for the defendant's advertising on the same basis as it paid for the advertising done by Georgia Power Co. and Davison-Paxon Co. and in no event less than 50 percent of the advertising costs, and that the plaintiff had failed and refused to abide by this agreement.
The case was tried without a jury. After hearing evidence and argument by both sides, a verdict and judgment was entered for the plaintiff in the full amount claimed in the suit. On November 16, 1960, the court overruled the defendant's motion for a new trial based on the general grounds only, and to this ruling the defendant excepted, bringing the case to this court for review.
The question for determination by this court is whether or not there was sufficient evidence to support the verdict for the plaintiff. The evidence is uncontradicted that the plaintiff sold certain goods to the defendant on open account, that the defendant received said goods, and refused to pay for them, leaving a balance due on said account of $11,986.74. The defendant contends, however, that he was entitled to a credit against said account in the amount of $11,195.25 on the basis of the alleged agreement as set forth above.
The agreement between the plaintiff and the defendant as to the advertising costs was an oral one and the evidence is conflicting as to its exact terms. Under the defendant's version of the agreement, he was to receive the same deal as Georgia Power Co. and Davison-Paxon Co. with reference to advertising the plaintiff's products. Under the plaintiff's version, the agreement was simply to the effect that the plaintiff would pay 50 percent of the cost of the defendant's television, radio and newspaper advertising, which was their regular cooperative advertising plan. The evidence is clear that all advertising had to be approved in advance by the plaintiff in order for the ads to qualify for the 50 percent credit, and that the defendant was not authorized to run any item of advertising under this plan without such prior approval. It is also undisputed that the plaintiff did participate in and pay at least 50 percent of the cost of all advertising done by the defendant with reference to the plaintiff's products. There is, therefore, evidence to justify a finding that the plaintiff had fully performed its contract with the defendant relative to the advertising costs.
Even if the trial judge had adopted the defendant's version of the contract, the defendant failed to prove the amount of credit, if any, to which he was entitled. The burden of establishing his affirmative defense was on the defendant and the evidence must show his right to recover as well as the specific amount to which he might be entitled. Code § 81-801; Smith v. Hilton Dodge Lmbr. Co., 13 Ga. App. 785 ( 80 S.E. 25).
The evidence is in agreement that Georgia Power Co. was paid on the same basis as the defendant and that Davison-Paxon Co. was paid 75 percent of its published vendor rate. However, the defendant offered no evidence that such payment amounted to more than 50 percent of the actual cost of such advertising.
The defendant having failed to show any specific credit to which he was entitled and the evidence being sufficient to support the verdict for the plaintiff in the full amount of the claim, the judgment of the court denying the defendant's motion for a new trial on the general grounds only was not error.
Judgment affirmed. Townsend, P. J., Carlisle and Frankum, JJ., concur.