52 S.E.2d 557 | Ga. Ct. App. | 1949
The superior court did not err in overruling the petition for certiorari, for the reasons stated in the opinion.
The evidence showed that Mrs. Daniel questioned the correctness of the account, and went to Rich's office where all of the sales tickets were shown to her and were identified by her as covering purchases made by her. It was then agreed that the Daniels would borrow the money needed to pay the account from the First National Bank, and Rich's would endorse the note to the bank. This was done on September 4, 1946. The note was payable to the bank in monthly installments, beginning October 5, 1946, and when the Daniels failed to make any payments, the bank called the entire amount of the note due — as it was entitled to do under the terms of the note — and required Rich's, as endorser, to pay the note, and payment was made by Rich's on December 23, 1946. Upon such payment, the note was transferred by the bank to Rich's, and upon the Daniels' failure to pay the note, after notice, Rich's brought suit on the note. The defendants originally defended the suit on the ground that the note sued on had been "paid" by the execution of a second note by Mr. Daniel on November 19, 1946 (more than a month before Rich's had paid the bank, as endorser, and had acquired title to the note sued). Witnesses for Rich's denied that any second note had ever been received or much less accepted as "payment" of the note sued on. Later the defendants filed a plea of partial failure of consideration, upon the ground that they had not purchased or received any item on the account after July 1, 1946, and that the items listed before July 1, 1946, should not have exceeded in cost the amount of $75. Mrs. Daniel admitted on the stand that she signed the sales tickets for every article with which she was charged in the account in question, and further admitted that she had received each of the items listed on the *889 account. The price of none of such items was disputed except an item for gloves for which a charge of $8.98 was made. Mrs. Daniel admitted that the signature on this sales ticket was her signature, but stated that she had never bought a pair of gloves which cost so much. She did not, however, explain why or how the signature, which she said was hers, came to be on the sales slip covering the charge for the gloves. The plaintiff introduced its ledger sheets of the defendants' account as the original and permanent record of the account, and showed it to be in accord with the account which was covered by the note sued upon.
The jury returned a verdict for the full amount of the note. The defendants moved for a new trial and this motion was overruled. The defendants thereupon petitioned the Superior Court of Fulton County for a writ of certiorari, which was sanctioned, but upon the hearing on the certiorari the superior court overruled and dismissed the petition. The defendants excepted to the action of the superior court. 1. While there may have been some conflict in the evidence, the jury was authorized to find for the plaintiff for the full amount of the note sued on.
2. In special ground 2 of the motion for a new trial, as set out in the petition for certiorari, the defendants complain that the court erred in withdrawing their plea of partial failure of consideration from the jury. The undisputed evidence of the witnesses, including Mrs. Daniel herself, was that she purchased and received all of the articles charged to her except the item of the gloves and she signed the sales slip for these. There was nothing in the evidence to show that the gloves were not of the value charged as shown by the account, and when the judge of the superior court, on the hearing of the petition for certiorari, by agreement with the plaintiff, wrote off from the amount of the judgment the price of the gloves, the defendants could no longer complain. Under the evidence the item of the gloves raised the only issue as to the partial failure of consideration. While we must, of course, concede that the trial court did err in failing to charge the jury on the issue of partial failure of consideration, so *890
long as the item of the gloves still remained an issue for decision by the jury, yet the judge of the superior court wrote the amount of the gloves off the judgment; thus at the stage and under the conditions in which the case reaches this court, the defendants make no showing that they have been harmed by the error assigned, and it is well established that, "in order to obtain in this court a reversal of a judgment of which complaint is made, the burden is upon the plaintiff in error to show not only error but injury." First National Bank v. American SugarRefining Co.,
3. In special ground 1 of the motion for new trial, as contained in the petition for certiorari, the defendants complain that the judge in ruling out certain testimony as irrelevant did so in such a manner as to intimate and express his opinion that the plaintiffs had proved its case and could recover.
Upon examination of this ground, it does not appear that counsel for the defendants made any objection at the time of such ruling or during the progress of the trial, but objected for the first time in his motion for a new trial. This ground is, therefore, defective and need not be considered. Pulliam v.State,
For the foregoing reasons the court did not err in overruling and dismissing the petition for certiorari.
Judgment affirmed. Gardner and Townsend, JJ., concur.
