3 Ga. App. 387 | Ga. Ct. App. | 1908
Mrs. Byck, the defendant, sent to the plaintiff in ■Cincinnati a lambskin coat to be relined and remodeled, with the following instructions: “I am sending you a lamb coat by express prepaid. Please examine same, and give me an estimate. I want the coat relined and remodeled, and the sable made into an extra piece.” The plaintiff replied, “Your Persian lamb coat received, also letter. To remodel your coat and reline and full
At the trial it was admitted by the witnesses for the plaintiff that the measure blank called for a coat 40 inches in the hips,, and that the coat was made 43 inches, or three inches larger than the instructions stipulated. The reason given for departing from the instructions in this particular was that it appeared that the defendant had a bust measurement of 38 inches, and the cutter and the fitter were of the opinion that the hip measurement was erroneous, because in all their experince they had never known a woman with bust so large and hips so small. Weiler, the president of the plaintiff company, testified that he had been in the fur business for thirty-six years, and “no woman having a 38-inch bust could have a 40-inch hip.” The cutter said, “I have been in the employment of this company and its predecessor about nine years.
. I would judge that it would hardly be possible for a person to .have a 38-inch bust measurement and only a 40-inch hip meas
The only errors assigned in the motion for a new trial are based on the charge of the court to the jury. The following portion of the charge is assailed as constituting error: “If you believe that the plaintiff remodeled this coat, but that it did not fit according to the terms of the contract, but that it could have been made to fit by a slight alteration by the plaintiff, which ,]would not have in any way impaired the value or appearance of the coat, and'that the defendants declined to allow the plaintiff to make that alteration, they having offered to do so, and if you believe further that the coat was made shorter, but that it was substantially the same length, and that wherein it was made shorter it was necessary, in order to make a workmanlike job, to make it from one-half to three-quarters of an inch shorter, on account of the fact that the fur was worn off of the coat at the bottom, — 'the court charges you that if you' find with the plaintiff on both these points, the plaintiff would be entitled to recover.” The defendants insist that this charge was error, because, in the first place, under the law, a breach of the contract occurred when the plaintiff returned the coat not fitting to the defendant, and that the plaintiff could not avoid this breach by afterwards offering to remedy said defect; and, in the second place, because by the contract the plaintiff was under an absolute duty to remodel the coat so that it would be the same length, and that it was a breach of the contract to make it from one half to three quarters of an inch shorter, even though it was necessary to do so in order to get rid of the worn-out fur.
The first objection is predicated on the theory that this was an entire contract of bailment, and that full performance by the plaintiff was a condition precedent- to a suit on the contract, under
It is contended, however, that this charge was error for the
2. It is further insisted that the court erred in charging the jury as to the burden of proof. The defendant, in her answer, alleged that the coat had been totally ruined by the work done on it, and that it was absolutely worthless; and she asked for judgment against the plaintiff for the full value of the coat. After stating the issue made by the pleadings, the judge said: “The effect of this plea is to put the burden upon the plaintiff of establishing that it has done its work on this garment according to contract, and the burden is on the defendant to show to your satisfaction that the work done on this garment by the plaintiff has made it worthless, and that it is of no value. The burden of proof means the greater weight of testimony, and while it may not be sufficient to remove every reasonable doubt from the minds of the jury, it is sufficient to incline your minds to one side of the case rather than to the other.” Under her plea this was a correct statement of