Duke v. Cason , 25 Ga. App. 344 ( 1920 )

Jenkins, P. J.

1. “ A nonsuit should not be awarded, even though evidence be introduced in behalf of the plaintiff which is vague and contradictory, if a recovery for any amount, no matter how small, may be authorized by any reasonable inference which may be drawn by the jury from any of the testimony.” Pendleton v. Atlantic Lumber Co., 3 Ga. App. 714 (1) (60 S. E. 377). This being a controversy over whether two bales of cotton and some syrup for which the plaintiff was suing in trover were included in a sale by him of his farming and store business to the defendant, and the evidence of the plaintiff himself being plainly to the effect that the item of syrup was specifically excepted at the time the trade was consummated, it was error to grant a nonsuit. Moreover, measuring the strength of the plaintiff’s ease solely in the light of his own testimony, it would have been possible for the jury to believe that the cotton also was excepted prior to the full statement of and final agreement upon the terms of the contract.

2. The court did not err in excluding from evidence, as a part of the res gestas, the “ statement of items of property sold and pointed out to the defendant,” the evidence disclosing that the defendant had never read the same, and that the contract as finally made was arrived at independently of such memorandum. . -

Judgment reversed.

Stephens and Smith, JJ., concur. Mundy & Watkins, for plaintiff. John K. Davis, for defendant.