1. The jury having found in favor of the defendant generally, and having thus necessarily adjudged, as they were authorized to do, that the plaintiff took over the timber and resold it to a third person during the period that the lease to the defendant had been extended, the plaintiff was not entitled to recover the agreed advance *277payment as a penalty or forfeiture; nor, in view of such finding for the defendant, could the plaintiff have been harmed by any error in the charge of the court as to the measure of damages. Civil Code (1910), §§ 4390, 4391; Conant v. Jones, 120 Ga. 568 (12) (48 S. E. 234); Carstarphen v. Central of Ga. Ry. Co., 8 Ga. App. 162, 164 (68 S. E. 848); Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315, 324 (125 S. E. 891).
Decided June 15, 1928.E. L. Smith, for plaintiff.
2. The court did not err in overruling the plaintiff’s motion for a new trial. Judgment affirmed.