15 Ga. App. 601 | Ga. Ct. App. | 1915
(After stating the foregoing facts.) Since, under the well-settled rule, a judgment refusing a nonsuit will not be reversed, if from an examination of the record it appears that the evidence as a whole was sufficient to support the verdict returned in favor of the plaintiff (Atlantic & Birmingham Railway Co. v. Sumner, 134 Ga. 673, 68 S. E. 593), and it has been further held that “an exception to the refusal to order a nonsuit will not be considered, where, in the motion for a new trial, which was overruled, error is assigned on the ground that the verdict is contrary to evidence and without evidence to support it” (Duncan v. Redd, 14 Ga. App. 306, 80 S. E. 726), it is unnecessary to consider the exceptions in this ease based upon the refusal of the trial judge to order a nonsuit when the plaintiff closed its evidence in chief. See also Henderson v. Maysville Guano Co., ante, 69 (82 S. E. 588); Weller v. Davis & Sanford Co., ante, 79 (82 S. E. 593), and cases there cited.
The original plea filed by the defendant admitted as true the allegations contained in the 4th paragraph of the petition, which were, in effect, that the plaintiff had faithfully performed all its obligations under the two contracts which formed the basis of the suit, and that the defendant had failed and refused to accept a portion of the goods contracted for, to wit, 200 tons of tankage and 25 tons of blood, and had refused to order out these goods and had notified the plaintiff not to ship the same; though it is also true that in the 2d paragraph of the answer the defendant denied that it had refused to comply with its part of the contract, and later, by an amendment, the admission originally made was withdrawn. “A defendant may file inconsistent and contradictory pleas, but the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made in one of the pleas, though in another part of the defense there is set up a contradictory state of facts.” White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (66 S. E. 811). Even “an admission contained in an answer of the defendant filed by him in another case is admissible in evidence against him when pertinent to an issue involved in the ease on trial.” Sons and Daughters of Job v. Wilson, 4 Ga. App. 235 (61 S. E. 134) ; Watkins v. Fontaine, 14 Ga. App. 321 (80 S. E. 694).' Even the admissions.in a bill in equity,'filed only by counsel and not sworn
"We have set out practically the entire evidence, and from an examination thereof it may be said generally that some of the communications from the defendant to the plaintiff might be interpreted as merely a request for the cancellation of the two contracts upon which the suit was based; or on the other hand, they might be construed, in connection with the related circumstances, and especially when taken in connection with the admission made in the original plea, as a cancellation on the part of the defendant. In other words, whether there was or was not a cancellation intended by the defendant company and communicated to the plaintiff was a question of evidence entirely for determination by the jury; and, notwithstanding the express assertion on the part of Bush, the manager of the defendant company, that the company never refused to comply with the contract and did not refuse to take and pay for the goods, the jury could have reached a different conclusion, not only from the admission in the original plea, but from the language employed in several of the letters and telegrams, the substance of which has been given, and also from the fact that the plaintiff was unable to obtain a definite response from the defendant to numerous communications asking in effect or in so many words the direct question whether or not the defendant proposed to accept the goods, and requesting shipping instructions. It will be observed that the'plaintiff wired the defendant, even as late as March 26, and again on April 1, 1912, in regard to the blood and tankage; and, so far as the record discloses, though these communications would seem to demand an answer, absolutely no response was elicited from the defendant. Previous letters, as will appear from the statement of facts, equally urgent and equally requiring an answer, appear also to have been quietly ignored: "Acquiescence, or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission.” Civil Code, § 5782. "In the ordinary course of business, when good faith requires an answer, it is the duty of a party receiving a letter from the other to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his corre
The assignment of error as to the refusal of the! court to grant a nonsuit has in effect been already discussed. The second special
We think that the instructions complained of in the 3d and 4th special grounds of the motion for a new trial contained no intimation of opinion that the defendant had refused to comply with its part of the contract, and had refused to take and pay for the goods bought, and had thereby made a breach of the contract, as is insisted by the plaintiff in error. The judge undertook therein merely to define to the jury an “executory contract,” and instruct them as to what would amount to a breach thereof, and to inform them what would be the proper measure of damages “if a purchaser refuses to take and pay for goods bought” and notifies the plaintiff before shipment that the goods will not be accepted, etc. The charge was adapted to the issues raised by the pleadings and the evidence, and it appears to us to have been fair and impartial and not subject to the criticism made thereof.
The assignments of error are without substantial merit, and, the evidence being sufficient to warrant the verdict, the judgment overruling the motion for a new trial is
Affirmed.