Puffer Manufacturing Co. v. Ryckeley

27 Ga. App. 744 | Ga. Ct. App. | 1921

Bloodworth, J.

Basing their opinion on the rulings in Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496), Byrd v. Campbell Printing Press &c. Co., 90 Ga. 542 (16 S. E. 267), and other like rulings, a majority of the court rule, that, as the testimony of the defendant in error must be construed most strongly against him, “the judgment should be reversed on the general grounds of the motion for a new trial; as the evidence demanded a finding that the defendant in error, after he had discovered the defects in the soda-fountain, executed his notes for the property and paid some of them, and such conduct constituted a waiver of all damages caused by the defects. ” While I raise no issue with my associates as to the principle of law announced in the decisions above referred ■ to, I cannot agree that under the facts of this case they are applicable and controlling, ft is my opinion, that, when considered in the light of all the facts of the ease, there is no reversible error, in any of the excerpts from the charge of which complaint is made in the motion for a new trial; that the evidence supports the verdict; and that the judge of the municipal court properly refused a new trial, and the judge of the superior court did not err in ordering that “ the certiorari be dismissed and that the judgment of the municipal court be sustained. ”

Judgment reversed.

Broyles, C. J., and Luke, J., concur. Bloodworth, J., dissents.