Fechtel v. Chastain , 79 Ga. App. 517 ( 1949 )

1, 2, 3. There is no merit in the five special grounds of the motion for a new trial.

4. The verdict for the defendant was not supported by the evidence and the court erred in overruling the motion for a new trial on the general grounds.

DECIDED JULY 2, 1949. R. H. Fechtel, doing business as Hall Feed Hatchery, instituted an action on a promissory note against P. A. Chastain. The defendant in his answer alleged that the note was given for the purchase-price of 4200 chicks and that the consideration of the note had wholly failed for the reason that the chicks had a disease known as "pullorum" at the time of delivery to the defendant, as a result of which only 1400 chicks lived, and that the plaintiff was indebted to the defendant for the expenses and costs incurred in caring for the sick chickens. Defendant amended his answer alleging that the chickens were not suited for the purpose intended, to wit, to be raised and marketed as broilers, and setting forth itemized expenses and costs. The defendant filed a second amendment alleging an executed contract of accord and satisfaction, the agreement alleged being that the defendant would sell the broilers raised and pay the plaintiff the proceeds which the plaintiff would accept as settlement of the defendant's indebtedness to plaintiff. The amendment alleged that the defendant sold the broilers as agreed and paid the proceeds to the plaintiff, which the plaintiff expressly accepted as full satisfaction and discharge of the note sued on. A third amendment to the answer alleged that the defendant fed the chickens $320 worth of feed the last three weeks the defendant had the chickens, which feed was purchased from dealers other than the plaintiff. The plaintiff's demurrers to the original answer and amendments were overruled and the only exceptions to this ruling are contained in the motion for a new trial. There was a verdict and judgment for the defendant for the amount of the note sued on and $320. The plaintiff filed his motion for a new trial on the general and five special grounds which are as follows: "1. Because the court allowed the plea of accord and satisfaction submitted by the defendant as being an amendment to the original answer, over the objection of movant. 2. Because the court refused the motion for a separate trial on the plea of accord and satisfaction. 3. Because the court allowed the amendment to the original answer over the objection of movant. 4. Because the court allowed the testimony of Paul Chastain in evidence which was illegally admitted by the court to the jury, over the objection of movant, to wit: ``We move the court to strike all of the evidence of the witness because all the evidence tends to contradict and vary the written contract which they entered into.' (page 6 of the brief of evidence). 5. Because the court allowed the evidence of the defendant over the objection of movant, to wit: ``to exclude all the evidence presented by the defendant which involves agency, for the reason that the defendant has not shown that the agent was acting within the scope of his authority within the transaction of the business deal.' (page 24 of the brief of evidence)." The plaintiff excepts to the overruling of his motion for a new trial. 1. Special grounds one and three of the amended motion for a new trial are without merit because exceptions to rulings on pleadings can not be made in a motion for a new trial.Cody v. Citizens Southern Nat. Bank, 50 Ga. App. 210 (177 S.E. 513); Oliver v. Wayne, 58 Ga. App. 787 (199 S.E. 841); Hayes v. Hannah, 61 Ga. App. 86 (5 S.E.2d 782).

2. The second special ground is without merit because an exception to the refusal to give a separate trial on a special issue can not be made in a motion for a new trial. Guthrie v.Gaskins, 171 Ga. 303 (155 S.E. 185).

3. Grounds four and five are obviously incomplete and can not be considered.

4. The court erred in overruling the motion for a new trial on the general grounds. The only reasonable interpretation of the verdict is that the jury found for the defendant on the defense of total failure of consideration for the reason that it found for the defendant sums in excess of the amount of the note sued on. The contention of the defendant was that the chickens had a disease called "pullorum" at the time they were delivered to the defendant. There was evidence that the flock had both "pullorum" and coccidiosis and that the latter disease was not present from hatching time but would be contracted about the fourth week. There is no evidence from which a jury could rationally determine how many chickens had pullorum on delivery, how many died from it, and how many contracted coccidiosis and died as a result of having caught that disease. The evidence showed that defendant raised 1400 of the chickens which sold for $1000. Since the jury obviously did not find that there had been an accord and satisfaction, we express no opinion on the question whether the evidence was sufficient to authorize the jury to find that there had been an accord and satisfaction.

The court erred in overruling the motion for a new trial on the general grounds.

Judgment reversed. Sutton, C. J., and Worrill, J., concur.