Miller v. Robbins Co. , 27 Ga. App. 245 ( 1921 )

Hill, J.

1. The plaintiff brought suit upon an open account for goods sold, itemized statements being attached to the petition. The defendant, in his answer, admitted that the goods described in the petition and exhibits were received by him, and that the credits set forth in the exhibits of merchandise returned and cash paid were correct. He contended that he bought the goods with the right to retui'n such as he did not use, and that under this condition he did return certain specified goods for which he had not received credit, giving an itemized statement with prices of the goods alleged to have been returned. lie failed to prove by competent evidence the return of any specific item of merchandise, or that he was entitled to any credit not given to him in the petition and exhibits. On the positive evidence of plaintiff in proof of the shipments of the goods and the failure to pay for those covered by the 'suit, and the admissions of the defendant, the court properly directed a verdict for the plaintiff.

2. Plaintiff also proved that the sale of the goods to the defendant was unconditional, without the right given to the defendant to return any part thereof, and that it had refused to sanction and agree to the claim of right to return any of the goods. The evidence in support of this contention was conclusive in behalf of the plaintiff.

3. A careful examination of the brief of the evidence leaves undiscovered any evidence upon which the jury could have based a verdict in any amount for the defendant; and therefore the direction of a verdict for the plaintiff for the full amount of the suit was the only possible legal result.

4. In view of the fact clearly shown by the record that the' verdict as directed was demanded by the competent evidence, any error that may have been committed by the admission of incompetent testimony was immaterial.

Judgment affirmed.

Jenkins, J., and Stephens, J., concur.