Freeman v. Petty , 22 Ga. App. 199 ( 1918 )

Bloodworth, J.

1. When considered in connection with the entire charge, the excerpts therefrom complained of in the motion for a new trial contained no error harmful to the plaintiff in error.

2. The court did not err in failing in its charge to define "the words" “express warranty” and “express contract of warranty,” no proper and timely written request therefor having been made. Wakefield v. Lee, 18 Ga. App. 648 (4) (90 S. E. 224); Western Union Telegraph Co. v. Ford, 10 Ga. App. 606 (5) (74 S. E. 70); Pye v. Pye, 133 Ga. 246 (3) (65 S. E. 424); Georgia Southern & Florida Ry. Co. v. Young Investment Co., 119 Ga. 513 (2) (46 S. E. 644).

Decided April 11, 1918.

Complaint; from Cordon superior court—Judge Tarver. June 30, 1917.

. Starr & Paschall, for plaintiff in error. R. Noel Steed, Lang & Lang, contra.

3. Where jurors were actually selected and empaneled to try -a case, and remarks were made by the trial judge to counsel in the hearing of the jurors, which counsel contend were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client, a motion should have been made to have a mistrial declared, and upon the judge’s refusal to grant it his ruling would have been subject to review. Counsel having failed to make such a motion, and having, without objection, proceeded with the trial, can not, after verdict, raise a question as to the prejudicial nature of the remarks complained of in motion for a new trial. Rogers v. State, 18 Ga. App. 332 (89 S. E. 460); Perdue v. State, 135 Ga. 277 (69 S. E. 184).

4. No error was committed in refusing to give to the jury the instruction referred to in the last ground of the motion for a new trial. Even where it is proper to charge on the subject'of expense incurred in complying with the contract, and such a charge is requested, it must he correct and it must appear that the expense was “necessary.” Civil Code (1910), § 4402; Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 416 (2) (65 Am. D. 602); Bryan v. Southwestern Railroad Co., 41 Ga. 71 (3).

5. The evidence was sufficient to support.the verdict.

Judgment -affirmed.

Broyles, P. J., and Harwell, J., concur.