Atlantic Coast Line Railroad v. Arant , 143 Ga. 561 ( 1915 )

Lumpkin, J.

(After stating the foregoing facts.) 'The plaintiff brought an action to recover 713 cross-ties. He had been selling cross-ties to the defendant, which were inspected by an agent of the latter, and those rejected were piled beside the railroad track and marked with a red cross. After a considerable number of ties had been thus rejected and placed in a pile (the plaintiff contended that they aggregated 713), the defendant carried away ' a number of them. It admitted having taken 250; and the issues were how many of the cross-ties it had taken, and what was their value. The judge of the trial court, in some manner, misapprehended the - nature of the action on trial, and instructed the jury that “The plaintiff has brought suit against the defendant for the purchase-price of certain cross-ties which the plaintiff alleges were sold and delivered to the defendant.” Doubtless this confusion grew out of the fact that the plaintiff was selling cross-ties to the defendant, and that those involved in the present action were rejected, but some or all of them were afterward carried away by the defendant. The'suit was not for their purchase-price under the contract of sale, but for their conversion after having been rejected. In the brief charge the instruction quoted above was the only one given by the judge as to the character of the case or the issues involved. He informed the jury that they should find in favor of the plaintiff for some amount, and report a verdict for the plaintiff for the principal, and also for interest at seven per centum “from the date when it ought to have been paid.” These instructions were inapplicable to the ease made by the pleadings and evidence; nor were apposite instructions given. It can not be said that the evidence so clearly demanded the verdict found by the jury that it should be sustained regardless of the error in the charge.

Judgment reversed.

All the Justices concur.