5 Ga. App. 291 | Ga. Ct. App. | 1908
Cutter-Tower Company sued Clements upon an •account for $44, for rent of a typewriter. The account which was the basis of the suit, and which was attached as an exhibit to the plaintiff’s petition, was as follows: “Henry W. Clements, Lenox, Ga., bought of Cutter-Tower Company, manufacturers of wood toothpicks, stationers, specialties and advertising novelties. Selling agents of the Franklin Typewriter*. . . Rent of typewriter from April 2, 1906, to April 2, 1907, twelve months, $48.00. Credit March 2, 1906, $4.00.” The jury rendered a .verdict in favor of the plaintiff, for $20. Thereupon the plaintiff moved for a new trial, and now excepts to the overruling of that motion.
As we have already stated, the plaintiff introduced the defendant as the witness by which it sought to prove its ease, and, as appears from the note of the presiding judge, the court had declined to allow any testimony as to the contents of the letter said to have been written by the defendant to the plaintiff (holding that the letter was the best evidence of its contents), and the case was closed without tendering the contract in evidence. As certified by the judge, a request was made to reopen the case for the purpose of introducing the contract, and, upon objection of the defendant’s counsel, it was agreed by counsel that if the contract went in, evidence- of the contents of the letter should also be submitted. We do not think that the exercise of the court’s discretion in reopening the case for the purpose of admitting the contract should have been hampered (if such was the case, as insisted by counsel for the plaintiff in error) by any condition providing for the admission of testimony which the court had already properly ruled to be inadmissible. But the plaintiff’s counsel, having agreed to the terms proposed, is estopped from deriving any advantage from this error. It was his right to make his motion that the evidence be reopened, and stand upon the propriety of that motion, and invoke the discretion of the court thereupon, free from any limitation. Even if the court desired to attach a
Judgment affirmed-