171 Ga. 330 | Ga. | 1930
Miss M. Pearl Cook foreclosed, in the municipal court of Atlanta, her laborer’s lien against the Bui.lders Supply Company, for services rendered to that company as a stenographer and typist. Miss E. Billingsly was the president of that company. By this proceeding Miss Cook was able to collect only a part of the amount due her. Being informed that Converse-Myers Company was indebted to the Builders Supply Company for building material sold by the latter to the former company, Miss Cook filed in Fulton superior court her equitable petition against the two companies, in which she sought to impound the funds so due the Builders Supply Company, and to have them applied to her claim against that company. By an interlocutory order the amount admitted to be due by the Converse-Myers Company was paid into
Intervenor moved for a new trial upon the general grounds, and by amendment added certain special grounds. The judge overruled the motion, and the intervenor excepted.
The court refused to approve the fourth ground of the motion for new trial, which complained that the court put the burden upon the intervenor. For this reason this ground will not be considered.
Movant complains that the trial judge nowhere in his charge to the jury instructed them upon whom the burden of proof rested. It has been frequently held by this court, and by the Court of Appeals, that, in the absence of a timely written request, mere failure to charge upon the burden of proof does not require the grant of a new trial. Small v. Williams, 87 Ga. 681 (6) (13 S. E. 589); Western Union Tel. Co. v. Travis, 144 Ga. 110 (4) (86 S. E. 221); Hunter v. Mahaffey, 144 Ga. 185 (2) (86 S. E. 538); Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5); Felder v. Roberts, 160 Ga. 799 (4) (129 S. E. 99); Rudulph v. Brown, 161 Ga. 319 (5) (130 S. E. 559); So. Ry. Co. v. Wright, 6 Ga. App. 172 (7) (64 S. E. 703); Central of Ga. Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (2) (64 S. E. 1128); Hickman v. Bell, 10 Ga. App. 319 (2) (73 S. E. 596); Daniels v. Arlington Wholesale Co., 35 Ga. App. 174 (132 S. E. 239). This array of authorities, holding to
In the sixth ground of its motion for new trial the movant contends that the court, after charging the jury that “The contention of Knapp Brothers Manufacturing Company is that Builders Supply Company did not sell the material referred to to Converse-Myers Company at all; that the sale was by Knapp Brothers Manufacturing Company directly to the Converse-Myers Company; that in the transaction Miss Billingsly acted as an agent and salesman for and on behalf of the Knapp Brothers Manufacturing Company,” did not charge the substantive law upon the subject of principal and agent, to wit: “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf,” and “ Whatever one may do himself may be done by an agent.” These provisions of law were not in issue in this case. The real issue was one of fact, that is, for which of two principals an agent was acting. The trial judge is not required to give in charge provisions of law about which there is no issue. Friedman v. Goodman, 124 Ga. 532 (2) (52 S. E. 892). Besides, the entire charge so fully and fairly presented the real issue in controversy as to leave no reasonable ground for apprehending that the jury did not understand the law of the case. So. Ry. Co. v. Sommer, 112 Ga. 512 (2) (37 S. E. 735). “What any juror of ordinary capacity would certainly know need not be delivered as a part of the charge of the court.” Smith v. State, 63 Ga. 168, 170.
The court charged the jury as follows: “Before the plaintiff would be entitled to prevail in the case, you must believe that Builders Supply Company sold the material to Converse-Myers Company, and that Converse-Myers Company owed Builders Supply Company for this material. If you believe that is true, then it will be your duty to resolve this issue in favor of Miss Cook and find that the money be applied to her claim in so far as it is necessary to the settlement of her claim.” Movant excepted to this charge, on the ground that it directed the jury that if they believed that Builders Supply Company sold the material to Converse-Myers Company, whether Builders Supply Company was agent or principal, they would be authorized to find in favor of the plaintiff; and on the further ground that said charge was calculated
The court charged the jury as follows: “If, on the other hand, gentlemen, you sjiould believe that the goods purchased by Converse-Myers Companj^, involved in this case, were sold direct by Knapp Brothers Manufacturing Company to Converse-Myers Company under a transaction between them in which Knapp Brothers Manufacturing Company was the seller directly to the Converse-Myers Company, and Converse-Myers Company is the purchaser of those goods from Knapp Brothers Manufacturing Company, then and in that event, gentlemen, it will be your duty to resolve this issue in favor of Knapp Brothers Manufacturing Company.” Movant excepts to this charge, on the grounds that (1) it eliminated from the jury their right to return a verdict in its favor in the event that the goods were sold directly by intervenor through Miss Billingsly or the Builders Supply Company as agent or broker for intervenors; (2) it was prejudicial in that it conveyed to the minds of the jury the impression that they must find in favor of plaintiff, if there was not a direct sale between intervenor and the Converse-Myers Company; and (3) it amounted to an expression of opinion by the court that intervenor was not entitled to recover, as- it was admitted by intervenor that the goods were sold not directly to Converse-Myers Company, but to that company through the instrumentality of their broker or agent, Miss Billingsly or the Builders Supply Company. These grounds of exception are without merit. This instruction did not take from the jury the right to find in favor of intervenor in case they found that the Builders Supply Company was the agent of intervenor. It can not be held prejudicial to the intervenor in
Counsel for movant earnestly insist that a verdict in favor of their client is demanded by the evidence. We do not think it necessary to encumber the report with a recital of the evidence upon the issue involved in this case. There is in the record evidence which' authorized the jury to find in favor of the plaintiff. There is likewise evidence which would authorize the jury to find in favor of the intervenor. This was an issue of fact for solution by the jury, and their finding upon conflicting evidence will not be set aside by this court. Judgment affirmed.