
    40193.
    JOHNSON v. KIDD.
    Decided June 18, 1963.
   Jordan, Judge.

C. G. Johnson, a dealer in shrubbery stock, landscaping and grading, filed suit on open account to recover the sum of $401 for landscaping services allegedly rendered the defendants, William G. Petty and Richard C. Kidd. The defendant Kidd filed an answer in which he denied that he was indebted to the plaintiff in any amount and the suit (which had been dismissed as to the defendant Petty) proceeded to trial before the court without the intervention of a jury. The trial court entered verdict and judgment in favor of the defendant and the exception is to the denial of the plaintiff’s motion for new trial on the general grounds only. Held:

Under the evidence adduced in behalf of the defendant who testified that he had entered into a contract with Petty, a building contractor, for the construction of a residence on certain property owned by the defendant for the sum of $28,500 which contract included landscaping of the grounds, that Petty had engaged the services of the plaintiff to do said landscaping, that he had entered into no separate agreement with the plaintiff for the performance of said services or the payment of said account, and that at the time of the final payment to the contractor he did not know that the plaintiff had not been paid and had received an affidavit from the contractor that all bills for labor and materials had been paid, a finding was authorized that the obligation to pay the account sued upon was that of the contractor and not of the defendant.

The verdict for the defendant was authorized by the evidence and the trial court did not err in denying the motion for new trial.

Judgment affirmed.

Nichols, P. J., and Frankum, J., concur.

Albert A. Roberts, for plaintiff in error.

Heyman, Abram, Young, Hicks '& Maloof, Robert G. Young, contra.  