Wimpy v. Gaskill , 76 Ga. 41 ( 1886 )

Blandeord, Justice.

The plaintiff in error sued the defendants in error for services rendered as an attorney at law; defendants pleaded the general issue; and further, that plaintiff was employed by their father, Y. A. Gaskill, to render the services charged, for, and that he had paid plaintiff for his services thus rendered. The parties being at issue upon the pleas, the jury found for defendants on both pleas. Plaintiff moved for a new trial, which being denied by the court, the plaintiff brings the case here for review.

1. The charge of the court, as set out in the record, is unexceptionable.

2. The complaint that the court charged the jury that the burden of proof is on the plaintiff upon the plea of payment, is not well taken. There is no plea of payment in the record, but the plea set out above is but an enlargement of the plea of the general issue, and the testimony’ would have been admissible under that plea. Hence there was no error in instructing the jury that the burden was on the plaintiff to make out this case by a preponderance of evidence.

3. The next complaint is that the court did not construe the contract in writing between plaintiff and V. A. Gaskill, but left it to the j ury. This exception is equally unfounded as the one considered. The record shows that the court did construe the contract, and it was left to the jury to determine whether the services rendered by plaintiff and sued for were the same as those contracted for by V. A. Gaskill, and this was proper.

4. The evidence supports the verdict, and there is no error in refusing a new trial.

5. In the second case, the court refused to entertain the motion for new trial, and dismissed the same, because a motion of the same sort had been presented and refused in the same case at the same term. The court was right to refuse to entertain the motion and to dismiss the same; it was res aujudieata and requires no demonstration.

Judgment affirmed in both cases.