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WILSON v. NORTHSIDE PLUMBING COMPANY, INC. et al.
46105.
HALL, Presiding Judge.
Action on account. Fulton Civil Court. Before Judge Bradford.
In a suit on account for plumbing materials and services furnished, the defendant property owner appeals from the judgment and from the denial of his motion for a new trial.
1. A material issue in this case was whether another defendant was the general contractor of the building job or merely appellant's agent or job supervisor. Appellant attempted to introduce a certified copy of a materialman's lien previously filed by the plaintiff which named the other defendant as the contractor and appellant as the owner of the subject property. This evidence was a circumstance tending to show that the plaintiff considered the defendants to occupy these respective roles at the time the work was done. It was certainly relevant to rebut plaintiff's theory of this action--that of agency. The court erred in excluding this evidence. "When the relevance of evidence is in doubt, the Georgia rule favors its admission and submission to the jury with any needed instructions." Patton v. Smith, 119 Ga. App. 664 (168 SE2d 627).
2. The court also erred in allowing a witness to testify, over objection, that "whoever owns the house would owe the balance." This is not only a conclusion of law by a layman, but possibly an erroneous conclusion, depending upon the facts found.
3. Appellant's contention that there cannot be a judgment against both the principal and the agent has no bearing here. A default was entered against the other defendant before this case went to the jury. Even assuming another judgment against appellant after a new trial, the liability of the agent would be his own problem should an execution be attempted against him.
4. In view of the fact that a new trial has been granted, the denial of appellant's motion for a continuance based upon surprise is now moot.
Richardson, Chenggis & Constantinides, Robert P. Mallis, for appellees.
Sam G. Dettelbach, for appellant.
ARGUED APRIL 6, 1971 -- DECIDED SEPTEMBER 8, 1971.
Friday May 22 16:23 EDT


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