Almond v. Bentley Gray, Inc.

138 Ga. App. 508 (1976)

226 S.E.2d 776

ALMOND v. BENTLEY GRAY, INC. et al.

51902.

Court of Appeals of Georgia.

Submitted March 8, 1976.

Decided April 29, 1976.

Gettle & Fraser, Sherman Fraser, for appellant.

Larry H. Evans, Beck, Goddard, Owen & Murray, Samuel Murray, for appellee.

STOLZ, Judge.

1. In this action on account against two partners of a retail clothing business, the trial judge did not err in granting summary judgment in favor of the plaintiff against both defendants and against the appellant on her co-defendant's cross claim, where the showing on the motion was that the merchandise sued for was ordered by the appellant and delivered while she was still legally a partner (although she was temporarily inactive in the business and intended to withdraw as a partner); and that, subsequent to the filing of the action, the appellant had executed an agreement dissolving the then existing partnership, under which the appellant and a new partner (since withdrawn from the partnership) specifically assumed liability for listed partnership debts, including those which are the subject of the present action.

2. The appellee's motion to assess damages against the appellant for bringing this case up for delay only (Code § 6-1801) is denied. Such damages are never assessed in doubtful cases where the exceptions are at least colorable. First Am. Acceptance Corp. v. Wheat, 217 Ga. 1 (2) (120 SE2d 330); Turner v. Turner, 191 Ga. 123 (2) (12 SE2d 633). The appellant's contentions that she was inactive in the business when the goods were accepted and that she would not have executed the dissolution agreement if she had known that all of the partnership debts were not listed thereon (although the one sued on was), are at least colorable.

*509 Judgment affirmed. Bell, C. J., and Clark, J., concur.