Callaway & Truitt v. Southern Railway Co.

126 Ga. 192 | Ga. | 1906

Atkinson, J.

1. It is insisted by the plaintiffs that the ruling of the court was erroneous for two reasons: 'first, because the evidence did not require a verdict in favor of the defendant; and second, because, though the plaintiffs failed to make out a case, the court should not have made a final disposition of the case by directing a verdict for the defendant. Upon the first proposition, we think the ease is controlled by the ruling in Southern Ry. Co. v. Kinchen, 103 Ga. 187. There is no substantial difference between the cases. In that case, a thirty-day draft was made by the consignor upon the consignee, but the ruling of the court turns not .so much upon the fact that credit was given as upon the theory that, hv electing to treat.with and recognizing title in the consignee, there was an abandonment of any claim for a wrongful delivery. The principle there ruled is manifestly controlling in the case at bar. The plaintiffs certainly treated the title to the goods as having passed to the Owens Company. Under no other theory could they have accepted the cash or the check. They have never offered to return either. Had they not intended to adopt the action of the railroad company in making delivery to the Owens company, the time for them to have spoken was when they received the remittance and check from their salesman. It may be that the salesman was not advised of the conditions, but there was no contention that the plaintiffs acted unadvisedly when they accepted the cash and the cheek. • Under these facts, in view of the ruling in the case above cited, the plaintiffs would not be entitled to recover anything whatever, not even nominal damages; for, if there was a right to recover anything, the right would have extended to the full amount.

2. In an appeal case, there is a judgment of the lower court to be disposed of. By the Civil Code, § 4472, it is mandatory that such cases shall be tried by a jury. The verdict is essential. In this connection, see Montgomery v. Fouché, 125 Ga. 43, and cases there cited. The court so interpreted the law, and, deeming it a proper ease for such disposition, directed a verdict for the defendant. If there had been any conflict of evidence or anything whatever in the case which would have authorized the jury to determine either of two or more possible ways, it would have been proper for the court to submit the case upon appropriate instructions; but there was nothing of the kind in this case. There was only one verdict which the jury could possibly have Tendered, and there was no reason why the court should not have directed the finding of that which the evidence demanded. If the plaintiffs did not wish to be concluded by the verdict of the jury, and if they had wished to save to themselves the right of instituting another suit upon the same cause of action, it was their privilege, after the conclusion of the evidence, to have dismissed the case upon their own motion. See Fagan v. McTier, 81 Ga. 74. They did not elect to do this, but stood by and suffered the verdict to be directed and entered against them without moving to dismiss. Having voluntarily submitted their case, they could not afterwards complain, unless there had been some error of law or want of- evidence.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.