Interstate Financial Corp. v. Appel

215 S.E.2d 19, 134 Ga. App. 407, 1975 Ga. App. LEXIS 2025
CourtCourt of Appeals of Georgia
DecidedMarch 18, 1975
Docket49294
StatusPublished
Cited by15 cases

This text of 215 S.E.2d 19 (Interstate Financial Corp. v. Appel) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Interstate Financial Corp. v. Appel, 215 S.E.2d 19, 134 Ga. App. 407, 1975 Ga. App. LEXIS 2025 (Ga. Ct. App. 1975).

Opinions

Pannell, Presi ding Judge.

Appellee, Norma Appel, brought a complaint against the appellant on a promissory note designated as Count 1 of her complaint. Count 2 of her complaint is not involved in the present appeal. Her motion for summary judgment as to Count 1 of the complaint was sustained and the defendant-appellant appeals to this court.

The appellant, Interstate Financial Corporation, was wholly owned by Morton P. Tauber. Appel Associates, Inc., was a corporation wholly owned by Tauber (37-1/2%), Arnold Balser (12-1/2%) and Donald Appel, husband of appellee (50%). There were some conflicts in the evidence, [408]*408however, these conflicts do not seem material to a proper decision of this case. That evidence most favorable to the defendant, Interstate, was contained in an affidavit of Tauber and depositions of Balser, which gave substantially the same picture of the transaction, as contended by the defendant. We quote from Tauber’s affidavit:

"At all times material hereto, I owned 37-1/2% of the outstanding stock of Appel Associates, Inc. ('Appel Associates’), a Georgia corporation which was engaged in the business of purchasing manufacturers close-outs in various dry goods and selling them to retailers. Arnold Balser owned 12-1/2% of the outstanding stock of Appel Associates and Donald Appel owned 50% our [of] the outstanding stock of the company. Mr. Appel was President of the company. Arnold Balser and I were Secretary and Treasurer of the company, however, I do not remember the specific office which each of us held.

“I am the president and sole stockholder of Interstate Financial Corporation ('Interstate’), a Georgia corporation organized for the purpose of factoring accounts receivable of Appel Associates. There was a written factoring agreement between Interstate and Appel Associates, a true, correct and complete copy of which is attached hereto and incorporated herein by this reference as Exhibit 'A’. Pursuant to that agreement, Interstate charged interest to Appel Associates at the rate of 10% per annum (1-1/3% per month) on the factored accounts. Appel Associates is, at this time, indebted to Interstate under the factoring agreement in an amount exceeding $80,000.

"In addition to the financing provided Appel Associates by Interstate, Arnold Balser, Donald Appel and I each made individual loans to the company. By September 30, 1971, accumulated unpaid loans from Donald Appel to Appel Associates amounted to $12,185.47. The largest loan, $8,900, was made in August, 1971. Mr. Appel stated on numerous occasions to me that most of the money loaned by him to the company had actually come from his wife, Norma Appel. No interest was paid on these individual loans.

"Sometime during September or October of 1971, I [409]*409don’t remember the exact date, Donald Appel requested that $10,000 of the funds loaned by him to Appel Associates be transferred by bookkeeping entries to show a loan in that amount from his wife to Interstate and in turn to show a,loan pursuant to the factoring agreement in that amount from Interstate to Appel Associates. A promissory note was to be issued by Interstate to Donal[d] Appel’s wife paying 12% interest on the outstanding principal balance, with the interest to be paid quarterly. The loan from Interstate to Appel Associates was to be under the factoring agreement, so that 16% interest was to be charged Appel Associates. After determining that Appel Associates had sufficient accounts receivable to secure an additional $10,000 in funds from Interstate under the factoring agreement, I agreed to make the entries in the books of both companies which were necessary to comply with Donald Appel’s request. Subsequently, the $10,000 note which is the subject matter of this lawsuit was issued by Interstate. Interstate did not receive any funds from Norma Appel, Donald Appel or anyone as consideration for the issuance of the note. The note was issued by Interstate solely as an outgrowth of conversations between Donald Appel and me. Neither Interstate nor I had any dealings whatsoever with Norma Appel.

"Toward the end of 1971, Appel Associates experienced an acute cash shortage. However, the company did not have sufficient accounts receivable to permit Interstate to advance additional funds to it under the factoring agreement. When Donald Appel was informed of this, he agreed to return the note issued by Interstate to Norma Appel so that the entire Norma Appel 'loan transaction’ could be canceled, thereby freeing the Appel Associates accounts receivable which secured the underlying 'loan’ from Interstate to Appel Associates. Those accounts receivable were sufficient to secure an additional $10,000 cash loan from Interstate to Appel Associates under the factoring agreement. Based on Donald Appel’s promise that he would return the note, Interstate advanced Appel Associates $10,000 on January 4, 1972, and the entire Norma Appel 'loan transaction’ was deleted from the books and records of [410]*410Appel Associates. The cancellation of the transaction occurred so soon after it had been agreed to that it was not necessary to delete any entries from the books and records of Interstate, because entries setting up the transaction had not yet been made in the Interstate books. No interest was ever paid by Interstate on the Norma Appel note.

"Donald Appel failed to return the Norma Appel note as he had promised. However, Appel Associates experienced numerous problems during 1972 and the immediacy of those problems was such that the Norma Appel 'loan transaction’ was forgotten by me until this lawsuit was commenced.”

Donald Appel testified that some of the funds advanced to Appel Associates belonged to his wife. His wife testified she advanced no funds to her husband but that the note sued upon was a gift from her husband. Donald Appel denied.that he agreed to the cancellation of the note sued upon.

Appellant contends this evidence authorized a finding that Donald Appel acted as agent for his wife and with her consent in investing her funds in the note sued upon. And that, under these circumstances, appellant had a right to assume this agency continued to exist and appellant was authorized to rely on the assumption that Donald Appel acted as her agent in agreeing the note sued upon be canceled so that appellant could extend credit to Appel Associates, Inc., of which Appel, Tauber and Balser were sole stockholders. Appellant relies upon the following cases: Salters v. Pugmire Lincoln-Mercury, 124 Ga. App. 414 (184 SE2d 56); Pinkston v. Cedar Hill Nursery &c. Co., 123 Ga. 302, 304 (51 SE 387); Meeks v. Withers, 181 Ga. 787, 795 (184 SE 604); Barrington v. Davis Jenkins & Sons, 44 Ga. App. 682 (162 SE 642); Aronoff v. Woodward, 47 Ga. App. 725 (5) (171 SE 404); Brogdon v. Hallman, 119 Ga. App. 464 (3) (167 SE2d 673); Gay v. Virginia-Carolina Chemical Co., 32 Ga. App. 720 (124 SE 364); Burch v. Americus Grocery Co., 125 Ga. 153 (1) (53 SE 1008).

1. "Apparent authority is power which results from acts that appear to third persons to be authorized by the principal.” Commercial Auto Loan Corp. v. Baker, 73 Ga. App. 534, 535 (37 SE2d 636). "The authority of an agent in [411]*411a particular instance . . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

R. W. Holdco, Inc. v. Johnson
601 S.E.2d 177 (Court of Appeals of Georgia, 2004)
Faulkner v. Hood
539 S.E.2d 886 (Court of Appeals of Georgia, 2000)
Turnipseed v. Jaje
477 S.E.2d 101 (Supreme Court of Georgia, 1996)
Addley v. Beizer
423 S.E.2d 398 (Court of Appeals of Georgia, 1992)
Dairyland Insurance v. Gay
386 S.E.2d 909 (Court of Appeals of Georgia, 1989)
APCOA, Inc. v. Fidelity National Bank
703 F. Supp. 1553 (N.D. Georgia, 1988)
Panfel v. Boyd
367 S.E.2d 54 (Court of Appeals of Georgia, 1988)
Brown v. Coastal Emergency Services, Inc.
354 S.E.2d 632 (Court of Appeals of Georgia, 1987)
Berríos Pagán v. Universidad de Puerto Rico
116 P.R. Dec. 88 (Supreme Court of Puerto Rico, 1985)
Home Materials, Inc. v. Auto Owners Insurance
300 S.E.2d 139 (Supreme Court of Georgia, 1983)
Stewart v. Midani
525 F. Supp. 843 (N.D. Georgia, 1981)
Gresham v. Rogers
248 S.E.2d 225 (Court of Appeals of Georgia, 1978)
Interstate Financial Corp. v. Appel
215 S.E.2d 19 (Court of Appeals of Georgia, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
215 S.E.2d 19, 134 Ga. App. 407, 1975 Ga. App. LEXIS 2025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/interstate-financial-corp-v-appel-gactapp-1975.