Butler v. Johnson

Wade, J.

1. In the absence of any pleading raising the question, the court did not err in repelling evidence tending to prove that the bill of sale relied upon to show title in the plaintiff in trover was in fact without consideration.

2. The court did not err in striking the 8th paragraph of the defendant’s answer, since the facts therein alleged were insufficient to show fraud in the procurement of the contract which it is sought to avoid on that ground. No fiduciary relation existed between the parties, and no reason appears why the defendant should be relieved from the results flowing from the execution by him of the written instrument. Towns v. West, 16 Ga. App. 300 (85 S. E. 274), and cases there cited. See also Truitt-Silvey Hat Co. v. Callaway, 130 Ga. 637 (61 S. E. 481); Weaver v. Roberson, 134 Ga. 149 (67 S. E. 662).

3. Assignments of error not referred to in the brief of counsel for the plaintiff in error will be treated as abandoned. This ruling applies especially to exceptions to the action of the court in striking the 9th, 10th, and 11th paragraphs of the defendant’s answer.

Decided January 27, 1916.

Trover; from city court of Floyd county — Judge Eeece. March 16, 1915.

C. I. Carey, for plaintiff in error. Maddox & Doyal, contra.

4. Under the pleadings and evidence in this case and the ruling in Ellison v. Wilson, 7 Ga. App. 214 (66 S. E. 631), there is no substantial merit in any of the assignments of error, and the judgment of the lower court must therefore be Affirmed.