Simms v. Massengale Advertising Agency

100 S.E. 235, 24 Ga. App. 182, 1919 Ga. App. LEXIS 484

• Court: Court of Appeals of Georgia
• Decided: September 18, 1919
• Docket: 10534
• Status: Published

Opinion

Brovles, P. 'J.

1. The court did not err in admitting in evidence the testimony of an officer of the plaintiff advertising agency, that credit for the account sued on was given to the defendant and not to the milling company of which the defendant was vice-president. Reynolds v. Simpson, 74 Ga. 454 (1), 460.

2. It does not appear, from the evidence, that there were two separate and distinct transactions, or “orders,” between the plaintiff and the defendant, but it appeared that the defendant guaranteed the payment of a single contract for newspaper advertising, and later, by mutual consent, there was merely a substitution of certain newspapers for those originally named in the order. The doctrine, therefore, that where a plaintiff mingles items upon which he is entitled to recover with items upon which he is not entitled to recover, and does not furnish to the jury means to separate them, a verdict and judgment in his favor is contrary to law, is not applicable in this case.

3. The defendant paid a part of the account, and the verdict for the balance was authorized by the evidence.

Judgment affirmed.

Bloodworth and Stephens, JJ., concuf.

Complaint; from Fulton superior court—Judge Ellis. January 9,1919.

Little, Powell, Smith & Goldstein, for plaintiff in error. Rosser, Slaton, Phillips & Hopkins, contra.