28 Ga. App. 602 | Ga. Ct. App. | 1922
Zemurray sold to Mansor, on June 6, 1919, a car of bananas described as “ Turnings, straights, and eights mixed.” The bananas had been previously loaded on- the car and were then in transit between New Orleans, La., and Montgomery, Ala. On December 28, 1919, Zemurray sold another car of bananas to Mansor; the description being the same as of the first car. Both cars were sold f. o. b. New Orleans, and the second car was also in transit between New Orleans and Montgomery at the time of the sale. Zemurray caused both cars to be diverted at Montgomery and forwarded to Mansor at Yaldosta. When the cars arrived at Yaldosta and were examined, the bananas were found to be in bad order, and both cars were rejected by Mansor. The carrier over whose line the bananas were transported from Montgomery to Yaldosta sold them in the usual course for sums less than the contract price, and Zemurray brought suit against Mansor for the difference.
The petition contained two counts, but the allegations in both counts were identical with the exception of the car numbers, the dates of the contracts of purchase, and the amounts claimed. Mansor, in his answer, after a general denial of the material allegations in the petition, set up his affirmative defense that at the time of the purchase of the bananas he was engaged in the business of selling and dealing in them at wholesale in Yaldosta, and that he bought the bananas, as the plaintiff knew, to be resold to the trade, and that the bananas diverted at Montgomery and offered
The charge of the court as a whole is excepted to, as well as specific excerpts therefrom; the gravamen of the exceptions being that the instructions to the jury covered both counts of the petition without separating the two counts, and thereby confused the jury on the question of liability. It is contended by the plaintiff in error that there are two separate and distinct claims arising ex eontratu between the same parties, which were joined in the suit under separate counts, and that this general instruction of the court tended to lead the jury into believing that the claims were mutually dependent and there could be no recovery upon one without a recovery upon both. There was only one issue in the case, and that was applicable to both counts of the petition, and that issue was whether or not the bananas were of the kind and grade ordered and were in merchantable condition when received at Valdosta. The issue of law was exactly the same as to each count, and, with the exception of different dates, amounts and damages, the evidence in support of each count of the petition was exactly the same. As stated in the case of Gainesville & Dahlonega Electric Ry. v. Austin, 127 Ga. 120 (56 S. E. 254), it was not incumbent on the court, in the charge to the jury, to deal separately with the two counts in the petition, as though two distinct and independent cases were on trial, nor to instruct the jury to inform the court on which count they found, in the event they returned a verdict in favor of the plaintiff. In the case of McFadden v. White City Mfg. Co., 22 Ga. App. 467 (96 S. E. 581), there were two separate and distinct claims of a similar nature joined by separate counts in the same action, and the plaintiff was entitled, as the court held, to have each of them determined'independently
Judgment affirmed.