Blalock v. Adams

31 Ga. App. 68 | Ga. Ct. App. | 1923

Bell, J.

(After stating the foregoing facts.)

In the absence of a special contract the defendants, who took the warehouse receipts merely as collateral security for the debt, could only sell after maturity of the debt, at public sale, to the highest bidder, after giving notice to the plaintiff of their intention to sell. Civil Code (1910), § 3530; Whigham v. Fountain, 132 Ga. 277 (1) (2) (63 S. E. 1115). See also Park v. Swann, 20 Ga. App. 39 (3) (92 S. E. 398); Campbell v. Redwine, 22 Ga. App. 455 (96 S. E. 347). The defendants did not undertake to come within the provisions of this principle, but set up a special contract. Of course, if the special contract existed as the defendants contended, the parties were bound by it, and the plaintiff should not have recovered; but the existence or non-existence of the special contract was in issue. A preponderance of the evidence, judging by the number of witnesses, rested apparently with the defendants, but all their material contentions were denied by the testimony of the plaintiff, and the verdict was therefore not without some evidence to support it. It is insistently contended by the plaintiffs in error that the evidence shows, without dispute, that when the cotton was demanded by the plaintiff the defendants offered to deliver to him 100 bales of the same grade, quality, and weight. But the record discloses that this question was also in issue by the testimony. The plaintiff testified that Mr. Blalock told him he would buy for him 100 bales of cotton, but that “there wasn’t anything said about grades.” Moreover, if there had been no dispute between the parties on this point, “the general rule is that the bailee can discharge his liability to the bailor only by returning the identical thing which he has received under the terms of the bailment.” 3 R. C. L. 115; 6 C. J. 1139. There are certain exceptions to the rule, but the exceptions are not here material. We should hold, therefore, that it is really immaterial whether the evidence upon this feature of the ease was in conflict or not. An oiler to deliver other cotton of the same quantity and ^quality would, under the rule stated above, constitute no defense to the plaintiff’s action. The only issuable defense which the defendants asserted was that of the special contract. The settlement of this issue by the jury upon conflicting evidence is conclusive upon this court in a consideration merely of the general grounds of the motion for a new trial. The trial judge, in overruling the motion, approved the verdict, and this court is powerless to interfere. There is nothing better settled than that if the verdict is supported by the testimony of a single witness and has the approval of the judge who tried the case, this court is without constitutional power to set the - verdict aside, though a multitude of witnesses may have testified to a contrary state of facts.

But it is also contended that the evidence of the plaintiff was so self-contradictory and uncertain that in law it should be disregarded. However much the plaintiff’s testimony may have been contradicted by others, we cannot say that it is materially contradictory in itself. It is the peculiar function of the jurors to settle the disputes of the witnesses; and where they have done, so and the judge has overruled the motion of one of the parties for a new trial, in which no error of law is complained of, the Court of Appeals is concluded. “This coirrt has no power to determine that the preponderance of the evidence is in favor of one party to the cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered.” Bunn v. Hargraves, 3 Ga. App. 518 (4) (60 S. E. 223). “A verdict cannot be set aside by this court merely because it is against the weight of evidence.” Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132).

It is equally well settled that where a verdict is attacked in a motion for a new trial because of the prejudice of a juror, and an issue is formed by the evidence introduced by the parties upon the motion, the judge is the trior, and, unless there is an abuse of discretion, his finding against the movant and in favor of the impartiality of the juror is to be treated as final. Such is this case. Jefferson v. State, 137 Ga. 382 (1) (73 S. E. 499); Webb v. State, 138 Ga. 138 (1) (74 S. E. 1001); Embry v. State, 138 Ga. 464 (2) (75 S. E. 604).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.