Frey v. Macon Sash, Door & Lumber Co.

Simmons, C. J. It appears from the record that the Macon Sash, Door and Lumber Company sold to Mrs. Wilder a certain quantity of “ aluminite ” to be used in plastering her house. Some time later she gave her promissory note in payment. When the aluminite was delivered, the vendors .furnished the vendee certain printed instructions as to how the aluminite should be made up and applied. Mrs. Wilder died, and her executor refused to pay the note. The ■company thereupon brought suit against him. He pleaded a total failure of consideration, in that the aluminite had proved utterly worthless for the purposes for which it was purchased. At the trial the defendant introduced two witnesses, who testified that they had mixed the aluminite in question and had applied it to the walls and ceilings of the house. The defendant also offered to prove by them •that in preparing and applying the aluminite they had exactly followed the printed instructions given by the vendor. Upon objection- the court refused to allow this testimony. After the evidence and argument were concluded and the court had charged the jury, the latter retired and returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled by the court. To this ruling the defendant excepted. 1. The plaintiff appears to have sent with the aluminite certain printed instructions or directions as to how it should be made up .and applied. When the witnesses were asked generally.as to whether they had followed these directions, the court rejected their evidence. It seems to us that this ruling was correct. The testimony sought to be introduced would have been merely an opinion without showing the facts upon which it was based. However that may be, it .appears that subsequently the printed instructions were introduced and read in evidence, and the witnesses asked as to how they had mixed and applied the aluminite, and allowed to state the exact manner in which they had prepared and used it. This evidence ■covered everything that would have been covered by the evidence rejected, and the defendant could not have been hurt by the substitution of the evidence allowed for that rejected. We think, therefore, that, even if the exclusion of the opinions was erroneous, the subsequent evidence fully cured the error. 2. Another ground of the motion for new trial complained that the court admitted certain evidence over the objection of the defendant, but the ground failed to state what objection was made at [244] the time. It is true that, in making the motion for new trial, reasons were assigned why the evidence was inadmissible; but, as has been frequently held, this court can not consider such reasons where it does not appear that they were presented to .the trial judge at the time the evidence was offered. 3. The evidence was sufficient to warrant the finding of the jury,, and the judge did not abuse his discretion in refusing a new triaL Judgment affirmed. All concurring, except. Lewis, J., absent.