Delpheon Co. v. Crankshaw , 25 Ga. App. 672 ( 1920 )

Bloodworth, J.

1. This court not being fully convinced that this case was appealed for delay only, the motion that the plaintiff in error be taxed ten per cent, damages under § 6213 of the Civil Code of 1910 is refused.

2. “An assignment of error upon the refusal of the court to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant’s motion for a new trial, to the overruling of which exception is taken, includes the ground that the verdict was contrary to the evidence and without evidence to support it.” Wakefield v. Lee, 18 Ga. App. 648 (1) (90 S. E. 224). See Buchanan v. James, 134 Ga. 475 (3) (68 S. E. 72), and cit.

3. The fact that the evidence in this case was not reported in “ shorthand” is no reason why a new trial should be granted. There is no law that makes the stenographic reporting of civil cases compulsory, or provides that a failure so to report the evidence shall be cause for a new trial.

Decided October 5, 1920.

Complaint; from Fulton superior court—-Judge Ellis. January 15, 1920.

Application for certiorari was denied by the Supreme Court. .

Douglas & Douglas, for plaintiff in error. Winfield Payne Jones, contra.

4. “ Where there is an attempt to bind a person by the act of an agent, it is necessary for the person asserting the agency to establish it. After a prima facie ease is made, the declarations of the agent himself, made accompanying the transaction or during the execution or settlement of it, are admissible in corroboration of the prior evidence tending to establish the agency.” White Sewing Machine Co. v. Horkan, 7 Ga. App. 283 (3) (66 S. E. 811). Applying this principle to the evidence in this ease, there was no error in admitting the evidence of which complaint is made in the 6th ground of the motion for new trial.

5. “The grounds of the motion for a new trial that the court erred in allowing in evidence certain documentary evidence can not be considered, since the evidence referred to is not set forth either literally or in substance in the motion or in an exhibit thereto.” Arnold v. Mitchell, 23 Ga. App. 658 (1) (99 S. E. 135), and cit. This ruling disposes of ground 7 of the motion for a new trial.

6. When considered in connection with the pleadings and the facts of the case, and in the light of the remainder of the charge, no excerpt therefrom of which complaint is made contains error that would require the grant of a new trial.

7. There is some evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.