2 Ga. App. 209 | Ga. Ct. App. | 1907
The Durant Lumber Company bought a carload of lumber from one Wells, who was operating a mill business. The Sinclair & Simms Lumber Company cut the lumber and shipped it. The Sinclair & Simms Lumber Company, which for convenience we will herein call the Sinclair Company, brought suit in its own name against the Durant Lumber Company, which herein we will likewise call the. Durant Company. For original answer the defendant filed a general denial of the paragraph of the petition alleging indebtedness upon the account. To meet a contention of the plaintiff that Wells was acting as agent of the Sinclair Company in making the contract, the defendant filed an amendment to the answer, in which he set up, that if Wells was agent of the plaintiff, the defendant had no knowledge of the fact, that Wells was indebted to the defendant, and that as to the remainder of the money beyond Wells’ indebtedness to the defendant, it had been paid into court under a garnishment proceeding instituted against Wells by one of his creditors. It appears, from the evidence, that shortly after Wells made the contract of sale he sold out his business to the Sinclair Company. The contention of the plaintiff is, that before the lumber was cut, Wells notified the Durant Company of this fact; and that Wells, as the agent of the plaintiff, made a new contract, whereby the plaintiff was to cut it instead of him. The defendant denied that it had any intimation that Wells had. sold out, or that the Sinclair Company was to cut the lumber, until after it had been shipped. Upon this point the plaintiff’s case rests solely upon the following testimony of Wells: “I did tell