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MISSISSIPPI TANK COMPANY, INC. v. WHITE, d/b/a DIXIE GAS COMPANY.
40372.
Action on contract. Reidsville City Court. Before Judge Carr.
EBERHARDT, Judge.
1. The denial of a motion for summary judgment is not reviewable. Code Ann. 110-1208; Macon Auto Auction, Inc. v. Georgia Gas. &c. Co., 104 Ga. App. 245 (3) (121 SE2d 400).
2. If the evidence presents jury questions on material issues a motion for judgment n.o.v. will not lie.
3. A verdict for the defendant is not authorized if the uncontroverted evidence or admissions disclose that plaintiff was entitled to have a judgment for some amount.
4. Special grounds of a motion for new trial excepting to the admission of evidence must state the objection made thereto at the time it was offered, or must by reference point out the place in the record where the objection can be found; otherwise no question is presented for decision.
Mississippi Tank Company, Inc. sued White to recover the price of various propane tanks consigned to White. The action was based on a contract dated November 14, 1958, providing in part: "(2) Customer agrees to remit promptly for each tank or tanks as they are used, sold, leased or moved from Customer's lot. Customer agrees further to remit promptly for any tanks that remain in his possession for a period of twelve months irrespective of whether they have been used, sold, leased or moved. (3) Customer and Manufacturer agree that the price to be charged for all tanks will be the Manufacturer's Consignment price in effect at the time."
The defenses raised were that the twelve-month provision did not apply to certain tanks delivered before the 1958 contract; that the plaintiff had been requested to pick up all subsequently delivered tanks before the expiration of the twelve-month period but had failed to do so; and, that defendant and plaintiff's agent had entered into a "new agreement" at the time the November, 1958, contract was signed, which agreement provided that the defendant could return any tanks he did not need. The evidence showed that some of the tanks were delivered to defendant prior to this contract and while the parties were operating under a similar contract which did not contain the payment after twelve months provision. Some of the tanks were delivered after the contract of November 14, 1958. The evidence tended to substantiate all of these defenses, except that, when the plaintiff's driver came to pick up the tanks, he found that at least one of them had been used, and would not accept any of them. There was a verdict for defendant.
Before trial, plaintiff had moved for a summary judgment, which was denied. It moved for a directed verdict on the trial, and later for a judgment notwithstanding the verdict. There was also a motion for new trial on general and special grounds. All motions were denied and plaintiff excepts to all adverse rulings.
1. Headnote 1 requires no elaboration.
2. In the state of the record, jury questions on material issues were presented by the evidence and the motion for judgment n.o.v. must fail.
3. Inasmuch as the defendant's evidence disclosed that one of the tanks plaintiff was notified to pick up had been used, thereby rendering the defendant liable for it even under his contentions that there had been a mutual departure from the terms of the written contract, as set out in his amended answer, to the affect that the tanks consigned to the defendant were to be paid for by him "in the event the tanks were used, sold, leased or moved" at a price to be fixed at that time, the verdict for the defendant was not authorized and a new trial must be granted on the general grounds.
4. The three special grounds of the motion for new trial, all complaining of the erroneous admission of evidence without stating what objection was made to the evidence when it was offered and without any reference to the place in the record where the objections can be found, present no question for decision and are not passed upon.
Judgment reversed. Felton, C. J., and Russell, J., concur.
J. Max Cheney, contra.
B. Daniel Dubberly, Jr., Albert Sidney Johnson, for plaintiff in error.
DECIDED NOVEMBER 4, 1963.
Friday May 22 22:24 EDT


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