Henley v. Toole ( 1917 )

Bloodwokih, J.

1. This was a suit on an open account. The demurrer alleging that certain portions of the bill of particulars were “indefinite and uncertain” was met by the amendment attaching to the petition itemized statements of the portions of the account to which objections were made, thus curing the defect complained of.

2. The defendant’s objection that the plaintiff’s weights and measures had not been tested was met by a prompt segregation, on the part of the plaintiff, of such items of the account as were sold by weight and measure; and the verdict rendered discloses that the jury deducted 25% from the total value of the items of account so segregated. The correctness of the amount of this segregation was not questioned upon the trial, and therefore can not be considered by this court. .

3. In the absence of any plea to authorize it, or of a timely written request therefor, the court did not err in omitting to charge upon the theory of defense set out in the second ground of the amendment to the motion for a new trial.

4. Under the facts of the case the excerpts from the charge of the court, complained of in the amendment to the motion for a new trial, could not have been harmful to the defendant.

5. No reversible error appears; the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P, J., and Jenkins, J., concur.