Nevil v. Trapnell-Mikell Co. , 1923 Ga. App. LEXIS 852 ( 1923 )

Jenkins, P. J.

The court charged the jury as follows: “There is only about one real issue in the case, and that is whether or not, if S. L. Nevil authorized Trapnell-Mikell Company to sell these goods to his son, Felton Nevil, or any part of them. I charge you in this case that if you find the plaintiff’s contention is true, that is, that S. L. Nevil, the defendant in this case, authorized them to extend this credit to his son Felton Nevil and agreed with them that he would be responsible for these articles sold, in that case you would be authorized to find for the plaintiff; the plaintiff would be entitled to recover if you find that to be the truth of the case. On the other hand, if you find that is not the truth of the case; if you find thaj; S. L. Nevil did not authorize Trapnell-Mikell Company to sell these goods to his son, Felton Nevil, and agreed to become responsible for them, in that case the plaintiff could not recover and your verdict would be for the defendant. I charge you further in this case, if you find that S. L. Nevil, the defendant, authorized Trapnell-Mikell Company to sell or furnish any part of these goods to his son, Felton Nevil,'and he would be responsible for any certain articles and amounts, in that case your verdict would be for the plaintiff for that amount, whatever he authorized the plaintiff to sell his son, Felton Nevil, in case you find that he authorized them' to sell him anything, or agreed to become responsible for any part of these goods. ' Now, 'as before ., stated, ■ that is. .about the only issue in .the case .for you .to-.deter'minel” -After defining 'preponderance -of 'the 'evidence,, -the -.court turned to counsel for the defendant and asked if there were any issues which had not been stated to the jury, and, upon 'being orally requested to charge .that “if the jury should find that [the defendant] authorized the charging of any particular goods, and should also find that he afterward paid for those,goods, then the jury should uot find a verdict against him.” The court instructed the jury, “If you find that there was any part of the goods charged in that account by the authority of S. L. Nevil, and he paid for whatever he authorized to be charged to him, of course your verdict in that case would be for the defendant.” The 11th ground excepts to these instructions, and the defendant contends that the charge was error in failing to state properly the contention that the defendant had paid for all goods which he had authorized to be sold; by a payment of $62.49 on the account, and that the court should have charged that if the jury believed this, they should find for the defendant. The account sued on properly credited this alleged payment, and the plaintiffs sought no recovery therefor. The instructions preceding the colloquy with counsel for the defendant not only presented to the jury the issue as to whether the defendant had authorized the sale of all of the goods, but, both at the beginning of the quoted language and in the same connection, before defining preponderance of the evidence, submitted the question as to whether he was resppnsible for “any part” of the goods. If the language used could be deemed in any wise ambiguous, the court, following the colloquy with counsel, charged the defendant’s specific contention that he had authorized only the portion of the goods paid for. The exception taken is without merit.

Judgment affirmed.

Stephens and Bell, JJ., concur.