Schaffer v. Moore , 59 Ga. App. 542 ( 1939 )

Sutton, J.

J. M. Moore sued Dave Schaffer in the municipal court of Atlanta on an account for $863.79. The defendant answered denying any indebtedness on the account sued on, and alleged that the plaintiff was indebted to him in the sum of $144.97 on account of having fraudulently secured his signature to certain tickets for merchandise which he never received, but for which he paid. The plaintiff introduced evidence in proof of his account, at the conclusion of which the defendant made a motion for a non-suit. This motion was overruled, and both sides then introduced further evidence, and the judge, before whom the case was tried without the intervention of a jury, found in favor of the plaintiff for the amount sued for. The defendant made a motion for new trial, which was overruled, and the defendant excepted.

1. An assignment of error on a refusal to award a nonsuit will not be considered where, after such refusal, the case is submitted to the jury, and a motion for new trial is made which includes the ground that the verdict is contrary to the evidence and without evidence to support it. Wakefield v. Lee, 18 Ga. App. 648 (90 S. E. 224); Firemen’s Insurance Co. v. Blount, 52 Ga. App. 223, 224 (183 S. E. 111); Foremost Dairy Products Inc. v. Sawyer, 185 Ga. 702, 716 (5) (196 S. E. 436).

2. Was the judgment in favor of the plaintiff authorized by the evidence ? The plaintiff in error contends that it was not, and we will now consider this question. The plaintiff was suing the defendant on an account for a meat bill from September 1, 1931, to October 2, 1931, which amounted to $863.19. The plaintiff’s bookkeeper testified as to the correctness of the account, and the original ledger sheets of the account were admitted in evidence without objection. Dean Morrison, delivery and sales agent for the plaintiff, testified that he delivered to the defendant all of the meat covered by the accoimt sued on, and further testified that, with the exception of one or two deliveries which were made by his brother, he delivered all of the meat to the defendant which was covered by the counter-claim. The plaintiff in error was basing his counter-claim on alleged overpayments from December 23, 1936, to October 1, 1931, and contended that his signature was by fraud obtained to certain tickets for meat which was never delivered to him. In this respect Morrison and three other witnesses for the plaintiff testified, in effect, that Morrison would stop by Schaffer’s place of business practically every day, and if he had what the defendant wanted Schaffer, or some one authorized by him, would inspect and weigh the meat up, and then Schaffer or Mr. Kraar would sign for same, that is, with one stroke of the pencil Schaffer or Kraar would sign an original ticket and two carbon copies for the meat, the original would be kept by Schaffer, the second sheet would go to Moore, and the third copy would be kept in the book for Morrison, the sales agent. When there were two deliveries in one day, the meat on the first delivery was left with Schaffer and a ticket with two carbon copies would be made out for such delivery, but said ticket would not be signed at that time, but when the second delivery was made, and same accepted, a separate delivery ticket would be made out for the second delivery, and carbon sheets would then be inserted over all of the delivery tickets, and thus, when Schaffer would sign, he would sign for the two deliveries by one stroke of the pencil, and most of the time Schaffer himself, while he had the book in his hands signing said delivery tickets, would tear out the tickets that were his copies and then give the book back to Morrison, the sales and delivery agent. The evidence also showed, and the defendant admitted on cross-examination, that during the period that he did business with the plaintiff he was furnished weekly statements showing the daily purchases of meat from the plaintiff.

It is not necessary to refer to all of the evidence, but it is sufficient to say that a careful consideration of the evidence shows that the judgment in favor of the plaintiff was authorized. Therefore the judge did not err in overruling the motion for new trial.

Judgment affirmed.

Stephens, P. J., concurs. Felton, J., dissents.