Yatesville Planing Mill Co. v. Johnson

Luke, J. The plaintiff, a partnership, sue.d in bail-trover for the highest proved value of 300,000 feet of boards, claimed to have been manufactured from timber purchased from the defendant. The defendant replevied the property, and denied that he had sold the timber to the plaintiff, or that the plaintiff had title to it. The plaintiff’s evidence tended to sustain its contention, while the evidence of the defendant flatly denied a sale to the plaintiff. From the plaintiff’s evidence it developed that the plaintiff had purchased from the defendant “all the timber defendant had remaining standing on his place, with the exception of 100,000 feet that he wanted to reserve;” that the plaintiff “was to pay for the remaining timber at the rate of $2 stumpage whenever defendant demanded it;” that $200 was paid down on the purchase-price; that the plaintiff hired a third person to saw the timber, and contracted with the defendant to deliver it on board ^ars; that the defendant did not deliver it, and that a portion of the purchase-price had not been paid. At the trial, in the presence of the jury and in open court, the plaintiff’s counsel, in his argument to the [577] jury, admitted that there was a balance due on the purchase-price of the timber, stated that he stood ready to pay such balance upon delivery of the timber, offered to pay the defendant that amount, and requested the court to instruct the jury that in the event they found for the plaintiff, their verdict should be for the highest proved value of the lumber, less the balance of the purchase-money due defendant, at the rate of $2 per thousand feet of lumber. No formal tender was made or pleaded, no written request to charge was submitted, and the defendant did not claim that any purchase-money was due him. 1. The court did not err in failing to charge as orally requested by counsel for the plaintiff. In this connection see Malcolm v. Dobbs, 127 Ga. 487 (4) (56 S. E. 622). 2. “The alleged newly discovered evidence was cumulative and impeaching in its character, and the court did not err in overruling the special ground of the motion for new trial based thereon.” Camp v. Bagwell, 23 Ga. App. 690 (2) (99 S. E. 234); Pool v. Duckworth, 148 Ga. 180 (96 S. E. 179). 3. “Failure to charge the jury the law with reference to the impeachment of witnesses, even when the same is applicable, in the absence of a timely written request for a charge on that subject, is not cause for a new trial.” Williamson v. State, 143 Ga. 267 (2) (84 S. E. 584). 4. The other special grounds of the motion for new trial are without merit, and further reference to them is unnecessary. 5. There was evidence to sustain the verdict for the defendant, and the court did not commit error in overruling the general grounds of the motion for new trial. Judgment affirmed. Broyles, G. J., and Bloodworth, J., concur.