8 S.E.2d 705 | Ga. Ct. App. | 1940
Under the law and the evidence a verdict in favor of the defendant was demanded as a matter of law. The judge of the superior court erred in sustaining the certiorari.
The record shows that while the mule was not returned under any specific agreement on the part of the plaintiff to accept it in full discharge of the debt, he did accept it and kept it for some time, and then mingled it with other mules of his own, and sold them together for a lump sum of $450. A finding was therefore demanded, as a matter of law, that the plaintiff had retaken the property and dealt with it as his own and in discharge of the amount of the note sued on. This conclusion is reinforced by the fact that the uncontradicted evidence showed that at the time of the retaking of the mule its value was at least equal to the amount of the note sued on. The evidence not only authorized but demanded the verdict returned by the jury in favor of the defendant. While ordinarily the first grant of a new trial, even on certiorari, will not be disturbed, the rule does not apply where, as here, the verdict was demanded. The judge of the superior court erred in sustaining the certiorari under the evidence shown by the record.
Judgment reversed. Stephens, P. J., and Felton, J., concur.