Cannon v. Mikell , 69 Ga. App. 38 ( 1943 )

Stephens, P. J.

(After stating the foregoing facts.) The ex-eeption to the refusal to grant a nonsuit can not be considered. It has been held repeatedly that an assignment of error on refusal to grant a nonsuit will not be considered where the 'record discloses that the case proceeded to a verdict and judgment for the plaintiff, and where the defendant moved for a new trial on the ground that the verdict was without evidence to support it. Trapnell v. Bird, 21 Ga. App. 21 (98 S. E. 498); Georgia Granite Cor. v. Union Granite Cor., 31 Ga. App. 261 (4) (120 S. E. 547).

"Whether or not the automobile was inaccurately described in the petition as respects the 'motor number, the defendants admitted possession of the car, and this precluded any inquiry into whether there was a variance between the allegations and the proof as to the motor number. The jury were authorized to find that there had been a conversion of the automobile when, after the defendants had received it with the understanding that they would sell it and pay the plaintiff $25 of the proceeds, applying the balance on the repair bill, they refused to sell it and to pay the plaintiff anything therefor. The jury were authorized to find that this action on the part of the defendants constituted a conversion of the automobile to their own use. The evidence supported the verdict and was not contrary to law. The court did not err in overruling the motion for new trial.

Judgment affirmed.

Sutton and Felton, JJ., concur.