9 Ga. App. 707 | Ga. Ct. App. | 1911
Armour & Company brought suit against Bluthentlial & Bickart for $3,0GG.98, the price of a car-load of hotel supplies, alleged to have been shipped and delivered to the Toxaway Hotel Company upon a written .guaranty of payment, therefor,
As to the first item, we think that there was no material variance between the allegation and the proof. There was no special demurrer to this item, although somewhat indefinite, and the evidence of this witness explaining this item of the account was that what was meant by “chicken loaf” was 5 cases, 24 cans, 2 pounds each, $9.50. The evidence shows that there were five cases of chicken loaf, each case containing 24 cans, 2 pounds each. In other words, the only variance in the allegations and the proof is that there were 24 cans, instead of 21, contained in the five cases
As to the item in the bill of particulars claiming $469.44 for 40 barrels of livers, when the proof showed that no such livers were furnished, and that this item should have been 40 barrels of loins, instead of livers, we do not think there was any evidence proving, this item of the account, and the court properly so instructed the jury. Clearly a suit for 40 barrels of livers is not proved by showing that no livers were-furnished, but, instead of livers, that 40 barrels .of loins were furnished. It would be as logical to claim that a man sued for a horse of a certain value could be held liable for the horse, although the evidence showed that it was a cow, and not a horse, which he had purchased. As to this item the plaintiffs should have amended to meet the proof. Failing to amend, they can not be heard to complain that the judge instructed the jury to the effect that proof of the sale of 40 barrels of loins did not support the allegation in the bill of particulars that 40 barrels of livers were sold. The burden was upon the plaintiffs to prove every item in the bill of particulars substantially as alleged. The defendants are only called upon to meet the allegations set out in the bill of particulars, and presumptively they prepare to meet the items of the bill of particulars, and not' others that may be proved against them, and they are entitled to demand that the evidence prove the items of the bill'of particulars as alleged. So much for these two items of the account set out in the bill of particulars which the trial judge- directed --the jury to disregard because they were not proved. ' What is here written relating to the item of 40 barrels of livers claimed in the bill of particulars as part of the account is the view entertained by a "majority of the court. The writer does not fully concur in this opinion. No objection was made by the defendants to the evidence of the plaintiffs explaining and correcting this item. It seems to rilé; therefore, that in the absence of such objection there was a tacit admission that the iteni
The next point insisted upon by the plaintiffs is that the jury improperly allowed a credit of $1,000 to the defendants. It was insisted that there was no legal evidence proving this credit. The Toxaway Hotel Company was the original debtor, the payment of whose debt was guaranteed by the defendants. The president of that company testified, in substance, that on September 10, 1906, the Toxaway Hotel Company made a payment of $1,000 to Armour & Co'., the plaintiffs, that this payment was for material which Armour & Co. had furnished to the Toxaway Hotel Company, and that.the payment was subsequent to the furnishing of the car-load of supplies by Armour & Co. to the hotel company, in. pursuance of the written guaranty made to them by the defendants. While it is not absolutely clear, in view of the other testimony of the president of the Toxaway Hotel Company, that his company was indebted to Armour & Co. on various other accounts contracted during the year 1906, in addition to the car-load of supplies for which the suit was brought, yet the question whether or not the $1,000 was paid for the car-load of supplies, or paid on some other account, was issuable, under the evidence. If it was not paid on the car-load of supplies when it was claimed as a credit by the defendants, the plaintiffs should have made it clear to the jury that this credit was not properly applicable to the car-load of supplies
The next point raised by plaintiffs is that the trial judge erred in charging in effect that the burden was upon the plaintiffs to show that no payment had been made, — in 'other words, to prove affirmatively that the account was unpaid,' — and in refusing a written request to charge that payment was a matter of defense, and that the burden of showing payment was on the defendants. The
Judgment affirmed on condition.