Lewis v. Sherwin-Williams Co.
Lewis v. Sherwin-Williams Co.
Opinion of the Court
Lewis, who owed a considerable debt to Sherwin-Williams Paint Company, was orally offered a contract to paint and paper 120 units for the owners of Carriage Hill Apartments at $300 per unit. He called in the manager and assistant manager of the paint company, who went over the apartments with him, helped him measure, and advised him on the cost of paint and paper. Powell, a wallpaper contractor, was present and stated his price per roll of paper. The appellee advised Lewis that it would not extend credit unless checks were made jointly to both parties, which in fact occurred. Lewis received checks during the construction, signed and forwarded them to the appellee, and the latter divided the funds, assigning a percentage to the prior balance due, a
1. The checks received during the course of the Carriage Hill contract were signed over by Lewis to Sherwin-Williams without restriction. "As to. . . application of payments... the general rule is that when a debtor makes a payment to a creditor holding several demands against him the debtor has the right to designate the claim to which the payment is to be applied. If the debtor does not exercise this privilege then the creditor may apply the payment as he chooses. Code § 20-1006.” Redfearn v. C & S Nat. Bank, 122 Ga. App. 282, 286 (2) (176 SE2d 627). This contract ran between February and September, 1973, and at no time prior to the filing of this suit the following year does it appear that the defendant contested his liability or the allocation of the sums endorsed over to the plaintiff by the defendant.
2. The second defense is difficult to understand. At one place in his testimony the defendant admitted that the items sued on were furnished on open account. He appears, however, to take the position that his relation to Sherwin-Williams was that of a partnership under which the plaintiff undertook to furnish wallpaper and a paperhanger. This is of course categorically denied by both the plaintiff and the paperhanger, who testified that he had a direct contract with Lewis, and that it was on Lewis’ suggestion that his labor reimbursement was taken out directly and forwarded him by the plaintiff. We must, however, look to see whether under any theory there is evidence to create an issue of fact that plaintiff
The defendant offered no testimony to support his position either that the owner contracted jointly with him and the plaintiff, or that the plaintiff agreed to assume the expense of wallpapering the apartments involved in the defendant’s contract. No consideration for such an undertaking is suggested by the evidence, and the only reasonable inference in favor of the defendant is that he thought the plaintiff felt that he could make a profit at a bid price of $300 per apartment. Otherwise, the testimony is self-contradictory and confusing. In the absence of evidence from other sources, it must be construed against the party offering it. Wilson v. Matthews, 122 Ga. App. 67, 69 (176 SE2d 178).
We find no evidence that the plaintiff and defendant acted as a partnership, and no evidence that the plaintiff gratuitously offered to shoulder the expenses of wallpapering the apartments. Lewis was not inexperienced or overreached; he had been in business for some thirty years. He testified that the plaintiff "wanted to sell the paper,” and he knew the cost per roll of hanging it. He alone entered into the contract. He did not deny the authenticity of the figures. Accordingly, he offered no legal defense to the action and the grant of judgment notwithstanding the verdict is without error.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.