Schmidt v. Wambacker

Warner, Chief Justice. The plaintiff sued the defendant on an open account for $1,036.42, and on the trial of the case the jury, under the charge of the court, found a verdict fqrthe plaintiffs for the sum of $635.42. A motion was made for a new trial on the several grounds therein stated, which was overruled, and the defendant excepted. 1. As to the necessity of declaring upon and proving the alleged special contract insisted on by defendant, see Johnson vs. Quinn, administrator, 52 Ga. 485. 2. There was no error in allowing the plaintiffs to testify as to the articles sold and delivered to the defendant, or his agent, from their original books of entry, the same being in their own hand-writing. 6 Ga., 365; 60 Ga., 347. 3. There was no objection to the introduction of the written contract in evidence under the pleadings in the case. The main question on the trial was whether the goods were furnished by the plaintiffs to Wylly, the defendant’s agent, under a special contract, or whether the same were furnished under a general authority from the defendant, to enable Wylly to perform his timber contract. Upon this point in the case the evidence was conflicting, but there is sufficient, evidence in the record to support the verdict'; and, although [324] the charge of the court was not as clear and satisfactory as it might have been, still, in view of the facts of the case as disclosed in the record, there was no material error in the charge to authorize the grant of a new trial, especially as this is the second verdict for the plaintiffs, one new trial in the case having been heretofore granted, and the jury having reduced the plaintiffs’ account $401.00, thereby disallowing such items as were not satisfactorily proved, it is to be presumed, and such as ought not to have been properly allowed under the evidence. There was no error in overruling the defendant’s motion for a new trial. Let the judgment of the court below be affirmed.