Fechtel v. Chastain

Felton, J. Special grounds one and three of the amended motion for a new trial are without merit because exceptions to rulings on pleadings can not be made in a motion for a new trial. Cody v. Citizens & Southern Nat. Bank, 50 Ga. App. *519 210 (177 S. E. 513); Oliver v. Wayne, 58 Ga. App. 787 (199 S. E. 841); Hayes v. Hannah, 61 Ga. App. 86 (5 S. E. 2d, 782). The second special ground is without merit because an exception to the refusal to give a separate trial on a special issue can not be made in a motion for a new trial. Guthrie v. Gaskins, 171 Ga. 303 (155 S. E. 185). Grounds four and five are obviously incomplete and can not be considered. The court erred in overruling the motion for a new trial on the general grounds. The only reasonable interpretation of the verdict is that the jury found for the defendant on the defense of total failure of consideration for the reason that it found for the defendant sums in excess of the amount of the note sued on. The contention of the defendant was that the chickens had a disease called “pullorum” at the time they were delivered to the defendant. There was evidence that the flock had both “pullorum” and coccidiosis and that the latter disease was not present from hatching time but would be contracted about the fourth week. There is no evidence from which a jury could rationally determine how many chickens had pullorum on delivery, how many died from it, and how many contracted coccidiosis and died as a result of having caught that disease. The evidence showed that defendant raised 1400 of the chickens which sold for $1000. Since the jury obviously did not find that there had been an accord and satisfaction, we express no opinion on the question whether the evidence was sufficient to authorize the jury to find that there had been an accord and satisfaction. The court erred in overruling the motion for a new trial on the general grounds. Judgment reversed. Sutton, ■C. J., and Worrill, J., concur.