15 Ga. App. 130 | Ga. Ct. App. | 1914
Neal brought suit against Ciprian for $174, and sued out summons of garnishment directed to the Southern Amuse
It appears from the record that Ciprian agreed to build a pipe-organ for the Southern Amusement Company for $1,500. Various payments, amounting to a considerable sum, had been made to him by the company, when he quit work upon the organ, his wife having become ill in another State. He directed the company to go ahead with the work, at his expense, and charge against the contract price the expenditures necessary to complete his contract. In support of its answer that it was not indebted to the defendant, the garnishee insisted that the completion of the organ required an expenditure of $3,100, and therefore that it could not be indebted to Ciprian, but on the contrary he owed it $600., There was evidence that there were several additions to the organ, not claimed to have been called for in the original contract, and that this extra work amounted to $1,000, making the total cost of the.organ $3,100. As to the testimony in behalf of the garnishee, it is sufficient to say that it would have relieved the garnishee from any liability if the jury had seen proper to consider it most favorably to the statements in the answer. However, there were several circumstances, submitted in the testimony in behalf of the garnishee, which supported the conclusion that at the time of the service of the summons it was indebted to the defendant. Upon the part of the plaintiff the evidence began with testimony to the effect that Jones (whom the evidence shows' to be the duly authorized general manager of the garnishee) admitted to the plaintiff, before the summons of garnishment was issued, that- the garnishee was indebted to Ciprian about $700; and there was testimony that subsequently to the time of the service of the summons of garnishment the garnishee made some payments to Ciprian in cash, and in other instances paid cash to other parties in settlement of his accounts. The burden of proof was upon the plaintiff to sustain the traverse, but Mr. Jones’s admission to Neal .that the. garnishee owed Ciprian about $700 shifted the onus, and placed upon the garnishee the burden of rebutting the
It is extremely doubtful that the evidence sustains the contention of the plaintiff in error that the contract price of $1,500 was for a completed- organ that would pla-y in the manner set forth in the oral testimony. The contract submitted in evidence definitely specified certain pipes, accessories, 'combinations, and couplers, the nature of the woodwork, the style of the swell pedal, and the location of the couplers, and, of course, under the terms of the contract, Ciprian was bound to pay for exactly what was called for by the contract, and to do exactly what the contract required as to assembling the parts, but if he fully complied with his contract and furnished the amusement company just what it had selected, and eon
Judgment affirmed.