James v. Perry

Carlisle, J. 1. While there was sufficient evidence to authorize the money verdict returned by the jury for the plaintiff, that verdict was not demanded. Under the pleadings and the evidence, together with the reasonable inferences to be drawn therefrom, the jury would also have been authorized to return a verdict for the defendant, for, under the circumstances shown by the evidence, the jury would have been authorized to find that the plaintiff accompanied the agent of the finance company to an automobile dealer’s place of business after the agent had already constructively taken control of the plaintiff’s car, that the plaintiff saw the agent and the defendant engaged in some transaction, saw the defendant examining the plaintiff’s car, and accepted a check from the defendant for $10 with the statement from the agent of the finance company that that was all he had coming to him, and at that time relinquished his physical possession of the car. From these facts and circumstances, the jury would have been authorized to find that the plaintiff saw the defendant purchasing his automobile, and that he stood by without interposing any claim or otherwise objecting, and that, therefore, he was estopped thereafter to assert any claim to the automobile. Allen v. Lott-Lewis Co., 8 Ga. App. 313 (68 S. E. 1073); Varn v. Bloodworth, 157 Ga. 300 (121 S. E. 380); Jackson v. Moultrie Production Credit Assn., 76 Ga. App. 768 (47 S. E. 2d 127). [70] Decided April 23, 1954. Harold E. Ward, C. C. Crockett, for plaintiff in error. Carl K. Nelson, contra. 2. Consequently, under tile conflict in the evidence demonstrated in the foregoing division of this opinion, the trial court did not, in the exercise of its discretion, err in granting the new trial. “The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” Code § 6-1608; Adams v. Hancock, 103 Ga. 561 (29 S. E. 715); Wimburn v. Fiske, 140 Ga. 132 (78 S. E. 717). Judgment affirmed. Gardner, P. and Townsend, J., concur.