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COOK v. VAN DEREN HARDWARE, INC.
48494.
STOLZ, Judge.
Action on account. DeKalb State Court. Before Judge Smith.
The defendant appeals from an adverse judgment rendered in the State Court of DeKalb County by the trial judge sitting as trier of fact.
Briefly, the plaintiff sued the defendant on an open account. The defendant denied the debt and asserted an affirmative defense that the debt sued on was a corporate debt which had been discharged in bankruptcy and not an individual obligation.
The trial judge, in his findings of fact, found: "That the defendant originally did business with the plaintiff as an individual; that the defendant incorporated in 1962; that the defendant did not give the plaintiff any knowledge or notice of the incorporation other than sending corporate checks in payment of certain accounts. Defendant testified that at one time he had paid his account with plaintiff with a variety of checks including personal checks and a sodding company checks.
"As a conclusion of law, the plaintiff was still relying on the defendant."
The plaintiff introduced in evidence 38 exhibits, comprised of orders and return memoranda, showing that the account was with "Harold Cook, Builder" (the defendant's business name prior to incorporation) or "Harold Cook." This evidence alone supports the finding of fact and conclusion of law that "the plaintiff was still relying on the defendant."
"Where, as here, the parties consent for the court, without the intervention of a jury, to determine all issues in the cause, this court will not reverse the judge if there is any evidence to support his finding, no error of law appearing." Atkins v. C & S Nat. Bank, 127 Ga. App. 348, 350 (193 SE2d 187) and cit.
Hopkins & Gresham, H. Lowell Hopkins, for appellee.
Lefkoff & Hanes, Paul L. Hanes, for appellant.
ARGUED SEPTEMBER 5, 1973 -- DECIDED SEPTEMBER 19, 1973 -- REHEARING DENIED OCTOBER 2, 1973.
Friday May 22 13:08 EDT


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