Andrews v. Commercial Credit Corp.

199 S.E.2d 383, 129 Ga. App. 294, 1973 Ga. App. LEXIS 979

• Court: Court of Appeals of Georgia
• Decided: June 26, 1973
• Docket: 47919
• Status: Published

Opinions

Clark, Judge.

Commercial Credit Corp. sued Andrews for a stated balance owing on a retail instalment automobile contract. Andrews filed an answer admitting execution of that contract but denying default and that any balance was due thereunder. In addition, Andrews pleaded a set-off in these words: "Further answering plaintiff’s petition defendant shows that he and the plaintiff had a reserve contract before, during and after the transaction sued upon and that plaintiff has never given defendant an accounting therefor and that plaintiff is indebted to defendant.”

Commercial Credit established the exact amount claimed by its business records and by cross examination of Andrews.

Andrews then undertook to submit evidence as to his accounting set-off. He testified he had been in the used car business from 1967 through December 5, 1970, when he was padlocked by the Federal Government. At that time his business records were in his establishment but they disappeared and had not been seen since then. The record shows he had through discovery interrogatories sought to obtain from Commercial Credit files documentary data to confirm his contentions but Commercial Credit denied that there had been any reserve contracts with Andrews and accordingly denied that any payments or credits had been made to him. (R. 22, 23, 26). Andrews testified he had in fact signed a reserve contract with Commercial Credit in 1967 or the first of 1968 under which a certain percentage of each deal was supposed to be placed in a special reserve and another portion in the regular account. "We were supposed to get a break-down copy of how much dealer reserve we had in the regular account, how much we had in the special reserve, which they held. It was supposed to pay the regular reserve at the end of each month, but from 1967 to 1970 I never drew a reserve check.” (T. 18). Although he was supposed to get a copy of the written reserve contract he stated none had ever been received.

In support of his contention that there was in fact a reserve contract he sought to introduce a written document concerning an automobile sold by him on March 18, 1968, which he said had accidentally been found in another file. He described it as being "This is a receipt of reserve I got on this deal with Commercial Credit, twenty-nine dollars and fifty-one cents in regular account, twenty-nine dollars and fifty-two cents in a special account.” (T. 19). Upon objection the trial judge refused to admit this into evidence. No tender of proof was made and there is no enumeration of error concerning its exclusion. He further testified that at the same period of time his financing arrangements were also with the Georgia Railroad Bank but in response to the question "You can’t tell us, or can you tell us just what amount of money Commercial Credit is indebted to you under these reserve contracts?” He answered "No, sir, I cannot, because I have not received from them the correct amount.” (T. 24). He further testified that in 1969 the then manager "did say that my reserve had been wiped out, but what he meant by 'wiped out’ I don’t know.” (T. 24, 25).

On cross examination the following dialogue ensued: "Q. Mr. Andrews, you just testified that you cannot testify as to any amount of reserve with Commercial Credit, is that right? A. No specific amount, no.” (T. 31).

In his own behalf, Andrews presented a former Commercial Credit employee who replied to the query "While you were manager of Commercial Credit did you ever enter into a reserve contract with Mr. Andrews?” that "I was in the process of trying to get Mr. Andrews set up as a dealer. I can’t remember whether he actually signed the reserve contracts or not. I don’t know, but we got the financial statement and what-have-you and actually tried to get him approved through our credit department in Baltimore, and I don’t recall what stipulations or what reasons that everything wasn’t worked out. I don’t recall all of that.” (T. 37).

With reference to the purported $29.51 the former manager answered that "Well, it would still belong to Commercial actually until the agreements were confirmed, and he was approved as a dealer. He would have no claim to the money if he in any way had any outstanding obligations due Commercial Credit.” (T. 39). On cross examination the former manager finally acknowledged specifically that the proposed agreement between Andrews and Commercial Credit was not consummated (T. 42) which he explained was due to the Baltimore office declining to approve the proposed transaction. (T. 43).

After both sides had closed Commercial Credit moved for directed verdict which was granted.

A motion for a new trial was filed on the sole ground that "the court erred in directing a verdict for the plaintiff.” After this was denied the instant appeal was taken with the single enumeration of error being that "The court erred in directing a verdict for plaintiff and not allowing the case to go to the jury for determination.”

1. "If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” Code Ann. § 81A-150 (a). Plaintiff proved the exact amount due it on the single retail instalment contract on which suit was brought. Andrews totally failed to establish by any competent evidence that there was some amount owing to him as a set-off. The trial court was correct.

2. When a party makes a claim for a monetary sum, even though it be in the nature of a set-off, it is incumbent upon him to present evidence in such a way that the jury may calculate the amount without guesswork. Lansdale Clothes, Inc. v. Wright, 217 Ga. 817, 819 (125 SE2d 502); Williams & Templeton v. Brewer, 93 Ga. App. 603 (1) (92 SE2d 586) and cits. See also Thomas v. Campbell, 126 Ga. App. 675 (3) (191 SE2d 619).

3. With Andrews being without his business records and with his discovery efforts to establish his contentions from Commercial Credit’s files having come to naught, he tried to create a jury issue as to $29.51 and $29.52 through the single purported receipt. But the trial court sustained an objection to the introduction of this memorandum and no offer of proof was made. Thus this document did not become a part of the record. Nor did appellant in his new trial motion aver this evidentiary ruling to have been error. "No matter how erroneous the ruling might have been (and we express no opinion on this question), a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it.” Upshaw v. Cooper, 127 Ga. App. 690 (1) (194 SE2d 618).

4. Where counsel fails to make a showing as to what he expected the witness to answer we cannot consider the excluded evidence. Berger v. Plantation Pipeline Co., 121 Ga. App. 362 (2) (173 SE2d 741). "A basic rule of appellate procedure is that no appellate court can rule on the exclusion of evidence unless it is aware of what was excluded. If error is based on the refusal to permit a witness to answer a question, the judge and the appellate court must be informed as to what the answer would have been.” 11 Encyc. Ga. Law, p. 261. We therefore cannot consider the omitted evidence that is not in the transcript.

5. There are some cases, of which Proctor & Gamble Co. v. Blakely Oil &c. Co., 128 Ga. 606 (57 SE 879) is illustrative dealing with the manner in which rejected evidence is treated upon an appeal from a directed verdict. Those cases which are cited in the dissenting opinion hold that where evidence which is essential to make out a case is excluded by the court, the losing party will not thereby be prevented from excepting to the direction of a verdict. In each of those cases the necessary tender of proof was made, the record contained the rejected evidence, and the point was not only preserved but specified as error. In those cases the appellate tribunal ruled error to have occurred in rejecting the evidence so that if admitted as should have been done that a jury issue would have been created. This case therefore does not come within that category.

Submitted February 8, 1973 Decided June 26, 1973. Archie L. Gleason, for appellant. Jay M. Sawilowsky, for appellee.

Judgment affirmed.

Bell, C. J., Hall, P. J., Eberhardt, P. J., Pannell, Deen, Quillian and Stolz, JJ., concur. Evans, J., dissents.