Thomas N. Baker Lumber Co. v. Atlantic Mill & Lumber Co.

Stephens, J.

1. Although, in a suit upon indebitatus assumpsit, a non-suit is proper where it appears from the plaintiff’s evidence that there was a written contract between the parties which defined their rights and obligations touching the subject-matter of the suit (Blue v. Word, 12 Ga. 45), yet where in such a suit for the price of goods sold the only evidence of a written contract between the parties was that the goods were sold on various written orders of the defendant and written acceptances of the plaintiff, that the obligations on the part of the plaintiff were performed, and that the goods ordered and accepted were not paid for, it was error to grant a nonsuit. See Southern Printers’ Supply Co. v. Felker, 125 Ga. 148 (54 S. E. 193).

2. While it is true that in this case the written orders and acceptances were not introduced in evidence and were shown only by oral testimony, this testimony was unexeepted to when offered, and no motion was made to rule it out. “If secondary evidence . . is admitted without objection, it is to be considered as evidence, and a charge or verdict may be based upon it; and such verdict will not be set aside as being unsupported by the evidence.” Munroe v. Baldwin, 145 Ga. 215 (88 S. E. 947). As the evidence admitted made a prima facie case for the plaintiff, it was error for the trial judge to grant a nonsuit.

Judgment reversed.

Jenkins, P. J., concurs. Smith, J., dissents.