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RAY v. THOMAS MCDONALD CORPORATION.
35311.
Breach of contract. Before Judge Henson. Fulton Civil Court. May 27, 1954.
CARLISLE, J.
1, 2. The evidence authorized the finding of the trial court, sitting without the intervention of a jury; and no error of law having been made to appeal, the court did not err in denying the motion for a new trial.
Thomas McDonald Corporation brought an action in two counts for a breach of contract against Mrs. H. J. Ray. The material allegations of count 1 as finally amended are as follows: "2. That the defendant is indebted to the plaintiff in the sum of $500 by reason of the following facts. 3. That at all times herein mentioned, plaintiff was engaged in the business of a business broker, and acted through its agent, Mrs. H. E. Mulkey. 4. That on January 19, 1954, defendant orally contracted with plaintiff through Mrs. Mulkey, that if plaintiff would procure a purchaser for defendant's rooming-house business at 565 Lee Street, Atlanta, Ga., at a purchase price of $1,000 net to her, to be paid in instalments of $30 per month, and assume the debt for some heaters located in said premises, that plaintiff would earn and keep all over said purchase price. 5. That on January 19, 1954, plaintiff obtained purchasers for said business, Louise B. Vernon and Reba P. Sanders, who were ready, willing and able to buy upon the terms of the defendant, and said purchasers were produced in person to the defendant, who negotiated with them, and orally accepted them as purchasers, said purchasers agreeing to pay $500 cash in addition to the terms and conditions contained in paragraph 4 above, and also agreed to give a loan upon their property as collateral to secure the above indebtedness. 6. That plaintiff, through Mrs. Mulkey, had also acquired another purchaser for such business, Mrs. Odell Shapiro, which fact was known to defendant, upon the same terms as set forth in paragraph 5 above. 7. That on January 20, 1954, Mrs. Vernon, one of the purchasers, asked Mrs. Mulkey to inquire whether Mrs. Ray, the defendant, would accept, instead of the agreed upon contract, the sum of $850 cash, in addition to the sum of $500 to go to plaintiff, and Mrs. Mulkey communicated this offer to defendant also stating to defendant that if she did not want the $850 cash, Mrs. Shapiro would pay $500 cash, in addition to $1,000 to be paid in instalments of $30 per month, and assume the debt fur said heaters, according to the terms of said offer, and would also give a loan deed on her property as collateral for said instalments, and said Mrs. Shapiro was ready, willing and able to buy upon the terms of defendant, and the defendant, upon being informed of the above, stated that she would take either one, and plaintiff states that both purchasers were ready, willing, and able to buy upon the terms of said contract between the parties, and for Mrs. Mulkey to make an appointment with Mr. Currie, her attorney, to close the matter at 4 p.m. that afternoon, and at 2 p.m. that afternoon Mrs. Mulkey called Mr. Currie, who informed her that the defendant had already sold the said business to some other person. 7a. The above agreement between the plaintiff and defendant having no time stipulated, a reasonable time was intended, and plaintiff shows that it performed its obligations under said contract within a reasonable time. 8. That plaintiff is entitled to the sum of $500 which it would have made if defendant had carried out her contract, and defendant fails and refuses to pay plaintiff said sum of $500 or any sum whatsoever."
The allegations of count 2 of the petition are: "Plaintiff adopts and makes a part of count 2, paragraphs 1, 2, 3, 5, 6, and 7 of count 1, as fully as if recopied here. 4. That on January 19, 1954, defendant orally engaged plaintiff, through Mrs. Mulkey, to find and procure a purchaser for defendant's rooming house business located at 565 Lee Street, Atlanta, Ga., at a purchase price of $1,000 net to her, to be paid in instalments of $30 per month, and assume the debt on some heaters located in said premises. 8. That $500 is a reasonable value of the services of the plaintiff to the defendant as set forth above, and plaintiff is entitled to said sum for its services."
It does not appear from the record that any demurrers were interposed to the petition. Upon the trial of the case before one of the judges of the Civil Court of Fulton County, without the intervention of a jury, the judge, without specifying on which of the counts he had made his findings, entered judgment for the plaintiff in the sum of $500. The defendant's motion for a new trial, based on the usual general grounds and two special grounds, was denied and she has brought the present writ of error to have that judgment reviewed.
While the testimony of a party in his own behalf must be construed most strongly against him, if self-contradictory or equivocal, and, without other evidence of right to recover, he is not entitled to a finding if his testimony, so construed, shows that the verdict should be against him (Long Cigar & Grocery Co. v. Harvey, 33 Ga. App. 236 (2), 125 S. E. 870, and citations), and this rule is applicable against a corporate party, upon the testimony of its president, it has never been extended beyond the president to other officers. Nalley Land &c. Co. v. Merchants &c. Bank, 187 Ga. 142, 146 (5) (199 S. E. 815), and citations. While the testimony of the broker's sales agent was contradictory and equivocal, and in conflict with that of the president of the corporate broker and in conflict with that of another officer of the corporation, the trial judge was authorized to find that the plaintiff had secured a purchaser, upon terms stipulated by the defendant and ready, able, and willing to purchase, but that, after having accepted the purchaser on her own stipulated terms, the defendant sold the business to a third person. The trial judge, sitting without a jury, was the arbiter of the credibility of the witnesses, and he was entitled to believe that phase of the sales agent's testimony which sustained the plaintiff corporation's cause of action as laid in the petition. Goldsmith v. State, 54 Ga. App. 268 (187 S. E. 694). The trial court's finding of and judgment for the plaintiff in the sum of $500 was authorized by the evidence.
2. The objection urged by counsel for the defendant that the trial court's finding should have stated upon which of the two counts of the petition it was made is without merit. No evidence was introduced in support of count 2, which was based on the reasonable value of the services rendered by the plaintiff to the defendant, and we must assume that the trial court, being presumed to know the law, excluded that count of the petition from its consideration entirely.
Saul Blau, contra.
Currie & McGhee, for plaintiff in error.
DECIDED OCTOBER 22, 1954.
Saturday May 23 03:47 EDT


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