Massachusetts Bonding & Insurance v. Bins & Equipment Co.

Court of Appeals of Georgia

Massachusetts Bonding & Insurance v. Bins & Equipment Co.

112 S.E.2d 626, 100 Ga. App. 847, 1959 Ga. App. LEXIS 747

CourtCourt of Appeals of Georgia

DecidedNovember 23, 1959

Docket37806

StatusPublished

Cited by8 cases

This text of 112 S.E.2d 626 (Massachusetts Bonding & Insurance v. Bins & Equipment Co.) 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.

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Massachusetts Bonding & Insurance v. Bins & Equipment Co., 112 S.E.2d 626, 100 Ga. App. 847, 1959 Ga. App. LEXIS 747 (Ga. Ct. App. 1959).

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Opinions

Quillian, Judge.

The sole question to be determined is whether there is any evidence- to sustain the verdict. While the evidence was in sharp conflict, the jury was authorized to find that Bins & Equipment Company, Inc., submitted a bid for a certain number of lockers, which was accepted by Bryan Construction Company. Construing the material instruments together (bid, telegram, and purchase order), the plaintiff clearly showed what it was offering for sale. The president later modified the bid to offer the 1,074 lockers for $4,800. There, was evidence that other suppliers bid $3,871.77 for the same number of lockers; however, their lockers did not meet the technical specifications. The jury may well have believed that it is improbable that one would supply twice the number of lockers [851]*851for the same price. The plaintiff’s bid shows “bathhouses” which might be indicia that the plaintiff was only bidding for a portion of the lockers.

There, was testimony introduced by Mr. Widener, an agent of Bryan Construction Company, that he telephoned Mr. Larry Newberger, vice-president of Bins & Equipment Company, Inc., advising him that two bathhouses were to be built. This testimony was to show a modification of the original bill to call for 2,148 lockers instead of 1,074. There was no objection to this testimony and the evidence disclosed Widener’s negotiations were with Larry Newberger, vice-president of Bins & Equipment Company, Inc., who was deceased at the time of the trial. This testimony by an agent of the defendant concerning words of a deceased officer of the plaintiff corporation was not admissible. Code § 38-1603. This was a conversation with a deceased officer of the corporation and was without probative force. It was held in Dye v. Richards, 210 Ga. 601, 604 (81 S. E. 2d 820): “The Code sections cited [38-1603 (1), 38-1603 (5)] specifically prohibit the opposite party from testifying in his own favor as to transactions or communications with a deceased party, or the deceased agent of a party. The defendant’s conversation with the deceased agent of the bank—-being incompetent and inadmissible—would have no more probative value than hearsay evidence. Hearsay evidence, although admitted without objection, is 'without probative value and insufficient to prove anything.’ Pool v. Duncan, 202 Ga. 255, 258 (42 S. E. 2d 731). See also Minor v. Fincher, 206 Ga. 721, 729 (58 S. E. 2d 389). The alleged conversation of 'the defendant with the deceased agent of the bank, being inadmissible and incompetent, had no probative value.” Disregarding -the testimony concerning the telephone call, the. jury could have believed that the plaintiff’s bid was for only a certain number of lockers and not a bid to furnish lockers for two bathhouses. They- would be authorized to believe this was the. entire contract between the parties.

As there was an issue- to submit to the jury, the trial court did not err in denying the motion for judgment non obstante veredicto. In McClelland v. Carmichael Tile Co., 94 Ga. App. 645, 647 (96 S. E. 2d 202) it is held: “The function of the mo[852]*852tion for judgment non obstante veredicto is not the same as that of a motion for a new trial, but is a summary method of disposing of the entire litigation where it is obvious that the party against whom the motion is directed cannot under any circumstances win his case.” See also Gordy v. Powell, 95 Ga. App. 822 (2) (99 S. E. 2d 313).

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.

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Quillian, Judge.

The sole question to be determined is whether there is any evidence- to sustain the verdict. While the evidence was in sharp conflict, the jury was authorized to find that Bins & Equipment Company, Inc., submitted a bid for a certain number of lockers, which was accepted by Bryan Construction Company. Construing the material instruments together (bid, telegram, and purchase order), the plaintiff clearly showed what it was offering for sale. The president later modified the bid to offer the 1,074 lockers for $4,800. There, was evidence that other suppliers bid $3,871.77 for the same number of lockers; however, their lockers did not meet the technical specifications. The jury may well have believed that it is improbable that one would supply twice the number of lockers [851]*851for the same price. The plaintiff’s bid shows “bathhouses” which might be indicia that the plaintiff was only bidding for a portion of the lockers.

There, was testimony introduced by Mr. Widener, an agent of Bryan Construction Company, that he telephoned Mr. Larry Newberger, vice-president of Bins & Equipment Company, Inc., advising him that two bathhouses were to be built. This testimony was to show a modification of the original bill to call for 2,148 lockers instead of 1,074. There was no objection to this testimony and the evidence disclosed Widener’s negotiations were with Larry Newberger, vice-president of Bins & Equipment Company, Inc., who was deceased at the time of the trial. This testimony by an agent of the defendant concerning words of a deceased officer of the plaintiff corporation was not admissible. Code § 38-1603. This was a conversation with a deceased officer of the corporation and was without probative force. It was held in Dye v. Richards, 210 Ga. 601, 604 (81 S. E. 2d 820): “The Code sections cited [38-1603 (1), 38-1603 (5)] specifically prohibit the opposite party from testifying in his own favor as to transactions or communications with a deceased party, or the deceased agent of a party. The defendant’s conversation with the deceased agent of the bank—-being incompetent and inadmissible—would have no more probative value than hearsay evidence. Hearsay evidence, although admitted without objection, is 'without probative value and insufficient to prove anything.’ Pool v. Duncan, 202 Ga. 255, 258 (42 S. E. 2d 731). See also Minor v. Fincher, 206 Ga. 721, 729 (58 S. E. 2d 389). The alleged conversation of 'the defendant with the deceased agent of the bank, being inadmissible and incompetent, had no probative value.” Disregarding -the testimony concerning the telephone call, the. jury could have believed that the plaintiff’s bid was for only a certain number of lockers and not a bid to furnish lockers for two bathhouses. They- would be authorized to believe this was the. entire contract between the parties.

As there was an issue- to submit to the jury, the trial court did not err in denying the motion for judgment non obstante veredicto. In McClelland v. Carmichael Tile Co., 94 Ga. App. 645, 647 (96 S. E. 2d 202) it is held: “The function of the mo[852]*852tion for judgment non obstante veredicto is not the same as that of a motion for a new trial, but is a summary method of disposing of the entire litigation where it is obvious that the party against whom the motion is directed cannot under any circumstances win his case.” See also Gordy v. Powell, 95 Ga. App. 822 (2) (99 S. E. 2d 313).

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.

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112 S.E.2d 626, 100 Ga. App. 847, 1959 Ga. App. LEXIS 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massachusetts-bonding-insurance-v-bins-equipment-co-gactapp-1959.

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