Taylor v. Gilmore

3 Ga. App. 93 | Ga. Ct. App. | 1907

Powell, J.

Gilmore sued the assignee of the Davisboro Bank for the balance of his deposit account. Two items only were in dispute at the trial. He claimed a credit of $600 which had not been allowed him, and the assignee, in addition to denying this credit, set up that there was an error in his pass-book and the account taken therefrom and attached to the petition, in that an item of $498.12 was twice included, when it should appear but. once. This last error, it is claimed, arose by reason of the fact that on the pass-book there were posted three individual items of $300, $160.62, and. $37.50, and then the total of these items, $498.12. The plaintiff sued for $703.75. If he was entitled to the credit of $600, and the credit of both the total $498.12 and the three individual items which aggregate that amount, the above was the sum to which he was entitled. There was introduced in evidence a paid cheek given by Gilmore on the bank, for $200, which had not been credited on the pass-book, but which Gilmore recognized to be a good charge against him; for in the account attached' to the petition he deducts this cheek, in order to make the sum due $703.75, instead of $903.75, as it otherwise would be. The pass-book was in evidence; and the balance marked due, after crediting the $600 and deducting $498.12, on account of the double credit of that, sum, but not -deducting for the $200 check, was $505.63, the exact amount of the verdict. The plaintiff’s testimony showed plainly and unequivocally that he was entitled to the •credit of $600. Only by weak inference and generality of statement does he claim both the $498.12 and the individual items composing that sum; while the evidence of error in crediting the amount twice is overwhelming. He did not dispute the correctness of the $200 item which should be charged against him. It is apparent, therefore, that the jury intended to find in favor of the plaintiff as to the $600 item, and against him as to the $498.12, but that in their calculation they used the pass-book, on which the $200 check was not charged, and thereby overlooked it. The judgment will therefore be affirmed upon the condition that the plaintiff shall, within twenty daj^s from the time the .remittitur of this court is filed in the office of the clerk of the trial court, write off from his judgment the sum of $200, and interest on that sum from November 5; 1904, and that in default of compliance with this condition a new trial is granted.

Affirmed on condition.