Opinion
35391.
DECIDED NOVEMBER 18, 1954. ADHERED TO ON REHEARING DECEMBER 17, 1954.
Action on contract. Before Judge Worthy. Cairo City Court. August 12, 1954.
Edwin A. Carlisle, for plaintiff in error.
Willard H. Chason, contra.
The court erred in directing a verdict for the plaintiff for the reason stated in division three of the opinion.
DECIDED NOVEMBER 18, 1954 — ADHERED TO ON REHEARING DECEMBER 17, 1954.
The American Lubricants Company sued Wight Hardware Company to recover an amount allegedly owed for goods sold and delivered under the terms of an order dated March 24, 1952. A copy of the order is as follows: (The portions underlined were handwritten.) "Order Blank. Tiffany Division. The American Lubricants Company, Deeds Ave., Dayton 1, Ohio, P. O. Box 676. Organized 1929. Make all checks payable to the company. Please ship as soon as possible. Date March 24, 1952. Charge to Wight Hardware Company, Alvin B. Wight, (owner). Post Office Cairo, County Grady, State Ga. R. R. Town Yes. Customer's Business Hardware Realestate, Feeds. Old customer yes. No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order, which is not subject to countermand. Goods not sold on consignment. Purchaser agrees that seller is not responsible for application or resale of materials purchased on this order. Title to these goods passes to the customer upon delivery to transportation company at shipping point. If the merchandise is refused, or returned, the account becomes due and payable at once. This and all other orders are sold subject to the approval of and payable at Dayton, Montgomery County, Ohio, office of seller. Price of goods FOB Dayton, Ohio, freight allowed. (Deduct freight when paying invoice, attaching freight bill to remittance). Not subject to countermand. Terms. Ninety Days." Under the titles, "Quantity in Gals. or Lbs.," "Description Of Goods Ordered," and "Price Per Ga. or Pound," the following was handwritten: "5000, Sturdy roof coating, $144 — 7200.00; 1500 lbs Sturdy cement, .17 — 255.00; A 20% deduction allowed — 7455.00; 20 brushes furnished; 10 trowels furnished." Following this was: "No charge for containers. Containers remain customer's property. Sturdy is not suitable for slate, or wood shingle roofs. I have read and understand this agreement. Terms of payment are checked as specified by me. I acknowledge receipt of carbon copy of this order. (Purchaser's signature): Wight Hardware by Alvin B. Wight. (Salesman's signature): W. C. Veach."
The defendant filed a plea of non est factum, alleging as follows: "Now comes the defendant in the above stated case, and files this its plea of non est factum, and says that it did not, nor did any of its officers or agents nor anyone authorized for it, execute the instrument sued upon in its shape now subsisting, the instrument originally executed having been intentionally altered with intent to defraud the said Wight Hardware Company, by W. C. Veach, agent for The American Lubricants Company, by erasing on the original contract the penciled line running through the striking from said contract the following: `No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order,' which portion was stricken at the time of signing of said contract and such alteration and erasure was done after the execution thereof and without the knowledge or consent of defendant or any of its officers or agents, and that said The American Lubricants Company is now claiming a benefit under it and in the following manner: That said contract or order between Wight Hardware Company and The American Lubricants Company was signed as a part of a collateral written contract entered into between Wight Hardware Company and W. C. Veach, individually and as agent for The American Lubricants Company, and that portion of said order blank providing `No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order' was stricken at the time of the signing thereof, such written contract, being in conflict with the printed portion on the order blank; that The American Lubricants Company does not now recognize the terms, provisions and stipulation contained in said written contract of its agent W. C. Veach and is claiming the benefit of the above language contained in its order blank, which was stricken and so rendered and considered at the time of signing as though no such language was in said order blank the same having been striken therefrom. And of this the defendant puts itself upon the country."
This plea was amended as follows: "By adding after the word `executed' in the fifth line of the first paragraph the following language, `being a part of a written contract executed therewith between Wight Hardware Company and The American Lubricants Company the execution of such contract inducing the execution of the instrument sued upon, which instrument sued upon', and by striking from the seventh line of said paragraph the following words, `W. C. Veach, agent for,' and by striking `by,' the last word in the seventh line of said paragraph, and by adding after the comma at the end of the fourteenth line of said paragraph the following words: `which alteration was intentionally and fraudulently done by The American Lubricants Company for the purpose of avoiding and nullifying the terms of the written contract, which written contract induced the contract order subsequently executed, but as a part of the one and only transaction between the parties, which language that was striken at the time of the execution of the order and subsequently erased, as aforesaid, would have negatived any contemporaneous agreement and such language so striken would have been notice that some representation or agreement existed that was a departure from the terms of the order, and such erasure of the line striking the language from the order, constituted a material alteration by The American Lubricants Company and was fraudulently done so that the terms of the written contract could be avoided and nullified and the language in the order blank used as the means for so doing.' By striking from the third line of the second paragraph the word `collateral' and by striking from the fourth line of said paragraph the following words, `W. C. Veach, individually and as agent for' and by striking from line twelve of said paragraph the following words `of its agent W. C. Veach,' and by adding after the comma at the end of the thirteenth line of said paragraph `which was fraudulently erased as aforesaid and for the purposes aforesaid, and.'"
The defendant filed the following amended answer subject to the above special plea: "The plaintiff's general agent, W. C. Veach, on or about March 24, 1952, called on Wight Hardware Company, at its office in Cairo, Georgia, in such capacity and as a result of a general agreement entered into between The American Lubricants Company acting through its said agent W. C. Veach, and Wight Hardware Company a certain printed order blank for a freight carload of roof products was filled out in duplicate and simultaneously therewith a written agreement as to the terms and conditions under which such order was placed with the company was executed in duplicate and together constituting the agreement between the parties. Copies of same being hereto attached as Exhibits A and B, respectively and so made a part of this answer and cross-bill. That said W. C. Veach was a general agent of the plaintiff and as such had authority to act for and in behalf of the plaintiff company in all matters concerning the sale and application of their roof products, particularly their brand name products, `Sturdy' asbestos. The said W. C. Veach, general agent of the plaintiff company, erased said penciled line through the printed portion of said order blank without the knowledge or consent of Wight Hardware Company or its officers and agents with intent to defraud the said Wight Hardware Company. That the American Lubricants Company shipped said carload of roof products consisting of 5,000 gallons of `Sturdy' roof coating and 1,500 pounds of `Sturdy' cement, 20 brushes and 10 trowels for a total price of $7,455 less 20% trade discount of $1,491 thus leaving an amount of $5,964, and on which has been paid a total sum of $2,500. That defendant has remitted to plaintiff all sums due it in accordance with said agreement and has at all times stood ready and willing to return said unsold portion of the roof coating shown in the original order of March 24, 1952. That defendant now has in its warehouse in Cairo, Georgia, all `Sturdy' asbestos roof coating shipped to defendant by the plaintiff under said order of March 24, 1952, which has not been sold by plaintiff's agent, W. C. Veach, under said contract shown as Exhibit `A' hereto and now stands ready and willing and tenders to said plaintiff said unsold portion of the order consisting of 3,185 gallons of `Sturdy' asbestos roof coating of the original order of March 24, 1952. That defendant offered, in a letter dated December 9, 1952, to ship said roof coating back to plaintiff, which offer was refused by the plaintiff. The above mentioned 3,185 gallons of roof coating has remained in defendant's warehouse since said date occupying space of the value of $50 per month for a period of 12 months beginning December 9, 1952, to date of the filing hereof, which space has been greatly needed by defendant, such material since the date of tender thereof having been stored for the use and convenience of said plaintiff. Wherefore, defendant having fully answered plaintiff's petition prays: (a) That defendant be hence discharged with its costs, and (b) That defendant have judgment against plaintiff in the sum of $600 as rent of said warehouse space from December 9, 1952, to December 9, 1953."
The following is the typewritten contract attached as an exhibit to the defendant's answer, the defendant's letterhead being left out: "Cairo, Georgia, March 21, 1952. This agreement entered into by and between W. C. Veach, party of the first part, and Wight Hardware Co., party of the second part witnesseth. That said W. C. Veach, party of the first part as representative of The American Lubricants Co. of Toledo, Ohio wishes to ship a carload of Sturdy asbestos roof coating to Cairo, Ga. to be stored in warehouse of Wight Hardware Co. for the purpose of having this roof coating available for immediate sale. It is agreed that this carload is to be shipped to Wight Hardware Co. as soon as possible foby [sic] the American Lubricants Co. on regular terms of 90 days. It is further agreed that if any portion of this shipment has not been sold by said by said W. C. Veach by the end of 90 days that whatever portion is left unsold can be shipped back to factory freight charges collect. It is further agreed that said W. C. Veach hereby agrees to sell this roof coating as soon as possible and same will be delivered by Wight Hardware Co. trucks in truckload quantities. If in small quantities it shall be shipped by regular commercial truck line. It is also agreed that before any roof coating is shipped that Wight Hardware Co. shall reserve the right to O.K. any credit account before merchandise is shipped. It is further agreed that W. C. Veach is acting both as representative of The American Lubricants Co., Dayton, Ohio as well as individually. It is further agreed that on shipments made by Wight Hardware Co. own truck that said W. C. Veach will pay cost of gasoline on these trips. This agreement entered into this the 21 day of March, 1952. /s/ W. C. Veach, Party of first part. /s/ A. B. Wight."
The plaintiff filed general demurrers to the plea of non est factum and the answer of the defendant. The court overruled the demurrers to the special plea and answer, denied the defendant's motion for a directed verdict, and directed a verdict for the plaintiff. The defendant moved to set aside the verdict, and that a verdict for the defendant be entered in accordance with its previous motion. The court denied the motion, and the defendant excepted to that judgment and to the direction of a verdict for the plaintiff.
A. B. Wight testified: that he was president and general manager of Wight Hardware Company; that he did not sign the order sued on as it appeared when introduced in evidence; that he signed an order blank with a portion of the fine print stricken by a penciled line running through the printed words, "No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order"; that the order blank introduced by the plaintiff had been altered since he signed it by the agent taking the order or someone else by erasing the penciled line; that the signature on the order was his but that he did not sign it as it then appeared; that the plaintiff's agent came to him with a proposition which he accepted and which they put into an agreement on March 21, 1952; that a few days later the agent came in with the order blank and asked him to sign it; that he told the agent he would not sign the order blank with the words, "No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order," as the typewritten contract of March 21 was in conflict with the order blank; that the agent told him to strike out that part and he did; that he had a carbon copy of the order blank showing the line stricken; that the carbon copy of the order and the contract of March 21, 1952, together constitute the transaction between the plaintiff and the defendant.
Albert Collins, vice-president and secretary of the defendant company, testified that he was present and saw Mr. Wight run a pencil line through the quoted portion of the printed order, and that it was signed in connection with and as a part of the contract of March 21, 1952.
1. The only assignment of error on the direction of a verdict for the plaintiff in the trial court is that it "was contrary to law and the evidence in the case," which raises only the question whether the court erred in the interlocutory rulings excepted to. Chandler v. Pennington, 89 Ga. App. 676 ( 80 S.E.2d 843); Henderson v. Henderson, 206 Ga. 23 ( 55 S.E.2d 578).
2. The plaintiff in error contends that the court erred in admitting in evidence the order allegedly signed by the defendant. The court did not err in admitting this order. While it is true that Mr. Wight testified that he did not sign the order as it appeared when exhibited to him on the witness stand, he did testify that the signature on the original order was his, but that when he signed it there was a pencil mark through the words, "No representations or agreements shall be binding on either customer or seller unless they are written or printed in this order." The court has before it the original order which Mr. Wight testified he signed. From a close scrutiny of this original order this court cannot say as a matter of law that a pencil mark had been run through the words above quoted and had been erased. Such being the case, the order was admissible in evidence and it would have been at the least a question for the jury whether the pencil mark had been run through the words and later erased. Craig v. National City Bank of Memphis, 26 Ga. App. 128 ( 105 S.E. 632).
3. The plaintiff in error contends that the court erred in not permitting its attorney to cross-examine Mr. Wight, president of the defendant corporation, after the plaintiff in the court below had put Mr. Wight on the stand for examination without stating that he was put up as agent of the defendant for the purpose of cross-examination under Code § 38-1801. There is no presumption that we know of to the effect that, when one party puts an opposing party on the stand, or puts an agent or officer of the opposing party on the stand, the witness is put on the stand for the purpose of cross-examination and not as a witness for the party putting such a witness on the stand. Therefore, it would seem that, in the absence of an announcement in open court to the effect that such a witness is put up for the purpose of cross-examination, the witness must be treated as the witness of the party calling him to the stand, with the attendant consequences. In such a situation, unless some special reason exists therefor, the court abuses its discretion in not allowing the other party to cross-examine the witness. This court cannot say as a matter of law that an attorney can get from a witness subpoenaed or produced in court by his client whatever he needs in the way of testimony just as well by a direct examination as by cross-examination. We think the rule here laid down is the wisest. It can be easily followed and will eliminate considerable confusion and uncertainty, which could surely arise from a ruling to the contrary.
4. For the reasons stated in division two, the court did not err in denying the defendant's motion for a judgment notwithstanding the verdict.
The court erred in directing a verdict for the plaintiff for the reason stated in division three.
The original opinion is withdrawn and the foregoing substituted therefor.
Judgment reversed. Quillian and Nichols, JJ., concur.