FLETCHER EMERSON &c. CO. v. DAVIS

50515.

134 Ga. App. 699 (1975)

215 S.E.2d 725

FLETCHER EMERSON MANAGEMENT COMPANY v. DAVIS.

Court of Appeals of Georgia.

Decided May 1, 1975.


Attorney(s) appearing for the Case

Jones, Bird & Howell, Arthur Howell, III, for appellant.

Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, William G. McDaniel, for appellee.


QUILLIAN, Judge.

Defendant appeals from an order of the trial court granting a motion for summary judgment in favor of plaintiff. Plaintiff solicited the Fletcher Emerson Management Company of Atlanta and Houston, Texas, for a contract to landscape "Emerson Center" in Atlanta. Plaintiff's second request was approved by John Moore, vice-president of defendant, with directions to "Ship to Fletcher Emerson Management Company ... to be used for Emerson Center." Business was conducted on an open account method, with a total amount being due of $37,683.44. All but $11,795.43 has been paid by defendant. On May 20, 1974, Mr. Roland Burrows, president of Fletcher Emerson Management Company, forwarded a letter from Houston, Texas, to plaintiff that "Fletcher Emerson Management Company will not be responsible for any further purchases for Emerson Center. All invoices in the future should be made in favor of Atlanta Venture No. 1..." Plaintiff alleged in his complaint that he had fulfilled performance of his contract with defendant prior to receipt of this letter and that prior to its receipt he had no knowledge of the existence of Atlanta Venture No. 1, nor did plaintiff have any knowledge that defendant was acting on behalf of Atlanta Venture No. 1. Plaintiff moved for summary judgment and filed two affidavits in support of his complaint which denied knowledge of the claimed agency of the defendant. Defendant countered with the affidavit of John E. Moore, which stated in pertinent part that "It was my policy and practice to explain to any party coming into business ... with Defendant... that Defendant Fletcher Emerson Management Company was a property management agency which managed property and acted as agent on behalf of property owners and that as to the Emerson Center, defendant was not the owner but, as evidenced by its name, was acting on behalf of the owners of Emerson Center as the management company retained by the ownership group ... I have no recollection of departing from this practice and procedure in regards to Plaintiff and I would recall any such departure." The trial court granted summary judgment for plaintiff.

1. Defendant denies responsibility for the balance due on the open account on the basis that it was an agent acting on behalf of a principal — Atlanta Venture No. 1. It is well established law that if an agent wishes to avoid personal liability on a contract, the duty is on him to disclose his agency and not on the party with whom he is dealing to discover the agency. Clonts v. Associated Dist., Inc., 132 Ga.App. 558 (208 S.E.2d 570). Whether or not the fact of the agency and identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence. Chambliss v. Hall, 113 Ga.App. 96 (147 S.E.2d 334). The fact that the agent uses a trade name is one factor to be considered. Defendant's trade name does indicate that it is a "management company." A trade name may be used under such circumstances that agency may be sufficiently disclosed. Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga.App. 300, 303 (145 S.E.2d 294); Chambliss v. Hall, supra, p. 100.

2. The affidavit of Mr. Moore included a statement regarding his "policy and practice" to disclose his agency and identify his principal when dealing with other parties. This is circumstantial evidence of disclosure of his agency. Although a witness may have no distinct or independent recollection of the details of a fact occurring in the course of the routine of his business, he may testify as to his fixed and uniform habit in such cases and state that he knows that he did not vary from that habit. Leonard v. Mixon, 96 Ga. 239 (23 SE 80); Interstate Life &c. Co. v. Whitlock, 112 Ga.App. 212 (144 S.E.2d 532). The probative value of such evidence is for the jury to determine. Daniel v. State, 130 Ga.App. 548, 549 (203 S.E.2d 736); Leonard v. Mixon, supra, p. 241.

3. The cardinal rule of the summary judgment procedure is that the court can neither resolve the facts nor reconcile the issues, but can look only to ascertain if there is an issue. Bagley v. Firestone Tire &c. Co., 104 Ga.App. 736 (123 S.E.2d 179); 3 Barron & Holtzoff, Fed. Prac. & Proc., 96, § 1231. The movant has the burden of showing the absence of any genuine issue of material facts. Raven v. Dodd's Auto Sales &c., Inc., 117 Ga.App. 416 (160 S.E.2d 633). In the instant case, for movant to prevail he had to prove his lack of knowledge that defendant was acting as an agent. He submitted evidence of this fact in two affidavits. Defendant contested the issue of lack of knowledge with an affidavit attesting to the established custom and procedure to disclose the agency and the principal. Knowledge can be proved by circumstantial evidence, even though the movant denies actual knowledge. Thompson v. Bolton Chev. Co., 125 Ga.App. 369 (187 S.E.2d 574).

4. Appellee contends that although there may be circumstantial evidence of the fact of knowledge, "in passing upon a Motion for Summary Judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists." Citing, Helms v. Young, 130 Ga.App. 344, 348 (203 S.E.2d 253) and Ussery v. Koch, 115 Ga.App. 463 (154 S.E.2d 879). This contention is a variant of the rule of Myers v. Phillips, 197 Ga. 536, 542 (29 S.E.2d 700), which held: "Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict, when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed." However, as explained in McCurry v. Bailey, 224 Ga. 318, 319 (162 S.E.2d 9), "[t]his is an instance too often occurring where a perfectly sound pronouncement is applied to a vitally different factual situation." In the instant case, as in McCurry, the circumstantial evidence is not "consistent" with the testimony of the witnesses but is "inconsistent." Therefore, Helms, Ussery, and Myers are inapposite. See Process Poster, Inc. v. Multi-Color Process Co., 129 Ga.App. 25 (198 S.E.2d 386). Applying the rule that the party opposing the motion for summary judgment is entitled to all reasonable doubts and favorable inferences that may be drawn from the evidence (Holland v. Sanfax Corp., 106 Ga.App. 1 (126 S.E.2d 442)), where there is some evidence — albeit circumstantial, from which a jury may infer actual knowledge of the existence of an agency, and this circumstantial evidence is in conflict with direct evidence of the movant, this conflict is sufficient to raise an issue required to be submitted to the triers of fact and the court erred in granting summary judgment to the plaintiff. Thompson v. Bolton Chev. Co., 125 Ga.App. 369, supra.

Judgment reversed. Pannell, P. J., and Clark, J., concur.


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