Brown Shoe Co. v. Crosby , 30 Ga. App. 534 ( 1923 )

Bell, J.

(After stating the foregoing facts.) Head-notes 1 and 2 do not require elaboration. Nor do the others. It only remains to apply to • the facts of this case the well known principles therein announced.

For either of two separate reasons it was error to grant the new trial. First, conceding for the present that no error was committed in the ruling upon the pleadings, the- evidence failed altogether to show that the goods were totally worthless. The plea as it stood was not sustained by the proof. Again, no data was furnished by which to determine the reduction to be made for the alleged inferiority in quality or difference in kind, — nothing to indicate the extent to which the consideration had failed.

The nearest approach to the latter requirement was the testimony of the defendant, as follows: “ I sold a pair of shoes to a customer, and he brought it back with no sole on it, a lady’s shoe, a high-priced shoe. I immediately gave him a new pair -of shoes out of stock. I sold that pair of shoes for $10.50 or $9.50, and I gave him another pair.” Again: “I sold a pair to B. L. Morgan one Saturday night, and on Monday he brought them back to me shot to pieces. Those conditions apply to the entire lot of shoes.” It does not appear how long the customer first mentioned kept the shoe, nor why it became soleless. Ho effort was made to account for this condition, whether from being inferior to the quality warranted or other cause. Neither did replacing this shoe establish the extent to which its value was lessened, if defective; and this was not otherwise shown. One customer gave evidence of having purchased two pair of shoes of the defendant which did not render satisfactory service, but if these were a part of the lot in question (which hardly appears), again no data was furnished by which to determine their proper reduction in value by reason of the defects claimed. Assuming that the condition of the several omission to establish with any sufficient certainty the extent to “the whole lot,” as stated by the defendant, there continues the shoes mentioned, including those “shot to pieces,” was true of which the consideration may have failed. No evidence whatever was given of the value of the goods received except by the defendant as follows: “ In my judgment the difference in value between the shoes' ordered and the shoes delivered me by the plaintiff had no comparison at all.” But error is assigned in the defendant’s motion for a new trial upon the exclusion of certain evidence. Under the theory now discussed, if, with this evidence admitted, the defendant would have presented an issue for the jury by his evidence as a whole, he would have been entitled to the grant of his motion. But the evidence admitted, with that excluded, would still have presented no issue under the principles above stated. In addition to the eases cited under headnote 4, see the following: Thompson Oil Mill Co. v. Murray, 19 Ga. App. 137, 139 (91 S. E. 217); Consolidated Phosphate Co. v. Sturtevant, 20 Ga. App. 474 (5), 479 (93 S. E. 155); Spence Drug Co. v. American Soda Co., 11 Ga. App. 473, 477 (75 S. E. 817); Grier v. Enterprise Stone Co., 126 Ga. 17 (1) (54 S. E. 806); Stimpson Specialty Co. v. Parker, 10 Ga. App. 295 (3) (73 S. E. 412).

Secondly, by a judgment upon the demurrer the plea was stricken in so far as it sought to set up a partial .failure of consideration. No exceptions were taken by the defendant to this ruling.. The plea was not sustainable upon the theory that it set up a total failure of consideration, because it affirmatively showed a value, and the court committed error in upholding it as a plea of that nature, in passing upon the demurrer. The reversal of that judgment relates back to the time of the ruling, and eliminates the part of the plea then remaining. The evidence of the defendant was thus introduced without any valid plea, and, in view of the improper overruling of the demurrer, was, regardless of the question of its intrinsic merit, ineffective and nugatory. Upon the admission of the prima facie case in favor of the plaintiff, the latter was entitled to the verdict directed. The subsequent grant of the defendant’s motion for a new trial, being infected with the error in overruling the plaintiff’s demurrer, should be reversed and the verdict restored. See the discussion by Mr. Justice Cobb, in Grew v. Hutcheson, supra, beginning on page 525.

The verdict for the plaintiff being in any possible view demanded, it was error to grant- a new trial.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.