26 Ga. App. 151 | Ga. Ct. App. | 1921
1. The plaintiff’s case was clearly and distinctly set forth in the cause of action attached to the summons, which fully informed the defendant of the plaintiff’s demands. While there was some slight ambiguity in the pleadings, the cause of action attached to the summons showed that it was an action ex contractu and not ex delicto.
2. While the question of the value of an article is peculiarly for the jury, and the opinion of witnesses is not absolutely binding on that body, yet there must be some evidence, direct or circumstantial, to support their finding. In this case the verdict exceeded the highest valuation that -could possibly be deduced from the evidence, by the sum of $9.96. The judgment is therefore affirmed on condition that the defendant in error write off this amount from the face of the verdict, within ten days from the date the remittitur is filed in the court below; otherwise the judgment will be reversed and a new trial had.
Judgment affirmed, on condition.