Piedmont Engineering & Construction Corp. v. Hanna Paint Co.

Gardner, P. J. 1. The controversy regarding the amount due revolves around the theory of law regarding appropriation of payments. The check for $650'was made payable jointly to the plaintiff and the defendant Hendricks. There is evidence to show that there was money owing to both parties at the time. There is evidence that there were no instructions as to where or to whom the appropriation of payment should be made. There is evidence to the contrary. The jury resolved the case in favor of the plaintiff. In the absence of instructions, the plaintiff had a right to, and did, elect to apply the check to money owed the defendant Hendricks leaving the account of the plaintiff still outstanding, with no part of the $650 applied to that account. There is some evidence in the record that there was no objection to this procedure by a vice-president of the defendant, and some evidence to the contrary. The law covering appropriation of payments is covered by Code § 20-1006. The evidence is sufficient to show that there was money due both the plaintiff and the defendant Hendricks; that the jury had a right to believe the evidence that the check for $650 was sent without instructions and that the plaintiff had a right to apply the check to either outstanding account. See Dye v. Peacock, 5 Ga. App. 417 (63 S. E. 520). The evidence is sufficient to sustain the verdict as to the general grounds. 2. Special ground 1 assigns error because it is alleged that the court erred in charging as follows: “There has been some evidence permitted to go before you with respect to payment of a check by Piedmont Engineering & Construction Corporation to C. J. Hendricks and this plaintiff Hanna Paint Company, Inc. If you find there was an account between the plaintiff and these [607] two defendants and that a sum of money was paid by the obligor, that is, Piedmont Engineering & Construction Corporation without any directions as to how it should be applied, then the person receiving that payment would be permitted to apply it wherever it might elect. On the other hand, if there were specific directions as to how the payment should be applied and to what account and to what obligation, then, the person receiving the payment would be obligated to apply it as directed.” Counsel for the defendant cited Henderson v. Maysville Guano Co., 15 Ga. App. 69 (82 S. E. 588), as being authority for the reversal of the case at bar. The facts in the Henderson case are somewhat different from the facts of the case at bar. The facts of the case at bar appear at first reading to be conflicting, but further study shows that the jury arrived at the conclusion that the check was correctly distributed and the jury’s verdict was correct. The court based the charge in question on the same evidence relied on by the jury. Realizing that perhaps the following statement is obiter dictum, we are constrained to say: That it is our opinion that had the court not so charged, error could have been properly assigned and sustained upon an assignment of error for refusal to so charge. The court did not err in charging as set forth in this special ground. Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs specially.