Savannah Chemical Co. v. Beagg & Son , 14 Ga. App. 371 ( 1914 )

Roan, J.

(After stating the foregoing facts.)

1. The assignment of error as to the overruling of the plaintiff’s demurrer to the defendants’ plea can not be considered by this court. A judgment overruling a demurrer can not properly be' made a ground of a motion for a new trial; ’and no exceptions • pendente lite were filed. The assignment of error on this subject i.n the bill of exceptions was not made within the time required by law. See Mayor &c. of Dublin v. Dudley, 2 Ga. App. 762 (59 S. E. 84); Williams v. State, 2 Ga. App. 629 (58 S. E. 1071) ; Farmers Oil & Guano Co. v. Southern Refining Co., 10 Ga. App. 415 (73 S. E. 350); Kelly v. Strouse, 116 Ga. 889 (43 S. E. 280) ; Buchanan V. McClain, 110 Ga. 477 (35 S. E. 665).

2. The second, third, and fourth grounds of the amendment to the motion for a new trial, which deal with the admitting of testimony, can not be considered, for the reason that the testimony objected to is not set out, either literally or in substance, in the motion for a new trial. And though it is stated that this testimony was admitted over objection, and that it was objectionable for certain-, reasons which are stated, it does not appear that any specific ground of objection was stated at the trial. “Grounds of a motion for a new trial complaining of rulings on evidence can not be com sidered unless the evidence is set forth either literally or in substance, or attached to the motion as an exhibit.” Owen v. Palmour, 115 Ga. 683 (42 S. E. 53). “That evidence was admitted over the abjection of the party complaining affords no reason for the grant of'a new trial, when it does not appear that any specific objection to its admission was made at the trial.” Stewart v. Bank of Social Circle, 100 Ga. 496 (28 S. E. 249). There are numerous rulings to this effect.

If the assignments of error as to the admission of testimony had been properly made, so that they could have been passed upon by this court, they could not have been held to be without merit; for the testimony complained of was too speculative and uncertain in its nature to have been admitted.to establish the damages claimed by the defendants. So also as to the exceptions to the overruling of the demurrer to the defendants’ plea. It has been repeatedly held by the Supreme 'Court that damages of the kind claimed in this plea, and which the defendants sought to establish by the testimony objected to, savor too much of conjecture and guesswork. One man may use nitrate of soda on his crop and by its use obtain very different results from those obtained by another using it on the same kind of land, with probably different methods of cultivation and in different seasons. Whilst absolute mathematical certainty is never required or expected in legal investigations, and is hardly ever attainable, yet in a court — a place for the adjustment of disputes between individuals as to their rights — -all proceedings should be on a plane as free from guesswork and conjecture as possible, and in the adjustment of these differences there should be used means adapted to reach the truth with reasonable certainty. Iiow is it possible for any person, considering all the contingencies and incidents necessarily attending the planting, cultivation, and fertilization of a crop of cotton, to tell, even after it has matured and has been gathered, the particular influence of any one thing in bringing about the final result ? Is it not necessarily true that those who undertake to do this are indulging in conjecture, speculation, and guesswork? See Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 416 (65 Am. D. 602); Butler v. Moore, 68 Ga. 780 (45 Am. R. 508); Clay v. Western Union Tel. Co., 81 Ga. 285 (6 S. E. 813, 12 Am. St. R. 316); Hall v. J. I. Case Threshing Machine Co., 11 Ga. App. 840 (76 S. E. 597).

3. One of the grounds of the motion for a new trial alleges error in refusing, on motion of the plaintiff’s counsel, to direct a verdict in the plaintiff’s favor. It has been frequently held by the Supreme Court and by this court that it is never reversible error for the court to refuse to direct a verdict.

4. The next ground of the motion for a new trial alleges that the court erred in charging the jury as follows: “You have the right, under the law, to infer from all the facts and testimony in this case, you have the right to draw legal conclusions and deductions in arriving at your verdict. You can take into consideration the testimony of the witnesses as to the value or non-value of the use of soda on this piece of land in this particular season and this particular year. You can take into consideration the use or non-use of soda on adjoining lands in this particular season, that is, on the Parker place, for that particular year. You can compare results. You can draw all reasonable deductions, in arriving at your verdict.” It is alleged that this part of the charge was error because “the jury were not authorized under the law to draw inferences,' conclusions, and deductions in arriving at their verdict, but should have been governed solely by the testimony which would tend to prove damages such as they would be able to compute with accuracy.” This assignment of error is without merit, for the jury are authorized under the law, and it is their duty, to draw inferenees, conclusions, and deductions from the evidence in arriving at their verdict.

5. There is no merit in. the next ground .of the motion for a new trial, where it is complained that the court, in charging the jury, prefaced the delivery of certain instructions by saying, “I am requested by the plaintiff to give you this in charge.” See Dotson v. State, 136 Ga. 243 (3), 245 (71 S. E. 164).

6. We now come to the usual general grounds, that'the verdict is contrary to law and to evidence, etc. A considerable part of the $1,200 damages allowed by the jury against the plaintiff for failure to furnish 16 tons of nitrate of soda as a top dressing for the defendants’ cotton crop was based upon testimony that is purely speculative, uncertain, and conjectural; and that part of the verdict is contrary to law; but a portion of the finding is sustained by evidence. One of the notes sued on was for $558, and was dated June 18, 1912, and became due November 15, 1912, and bore interest from maturity at the rate of 8 per cent, per annum. In the body of this note Bragg & Son admit that the laws of this State were complied with on the part of the seller of the fertilizer, as to dhe inspector’s tag and in all other respects, and that the sellers “have neither impliedly nor expressly warranted the effect of [the fertilizer] on crops,” and the buyers agree that they “can not hold the [seller] responsible in any way for practical results.” While the defendants thereby precluded themselves from pleading the worthlessness of the particular land plaster or top dressing for the soil, for which this note was given, yet on the trial of this case the plaintiff failed to object to testimony, introduced by the defendants, to the effect that the fertilizer for which this note was given was dirt and entirely worthless. The plaintiff thereby allowed the defendants to place before the jury evidence of the non-value of the land plaster or top dressing for which this note was given; and the jury had the right, under that evidence (which nowhere in the record is disputed), to allow the amount of the note as a part of the damages awarded under the plea of recoupment. This note, with interest on it up to the time of the trial, and the amount of the difference between the contract price of the 16 tons of nitrate of soda at the time it was purchased and the sum it was worth at the time it was to be delivered (it having advanced in price $7 per ton, and therefore being worth $112 more than the defendants had contracted to pay for it, in which sum the defendants were likewise damaged), added together, make $688.60; for which the jury were authorized to find damages in favor of the defendants against the plaintiff. Any greater amount of damages than this was without legal evidence to support it, and therefore was contrary to law. We therefore affirm the judgment, with direction to the court below to add to the plaintiff’s recovery the sum of $511.40, the effect of this being to write off from the $1,200 damages, found by the jury by way of recoupment, all except $688.60; the costs to be taxed against the defendants.

Judgment affirmed, with direction.