Johnson v. Fulmer

129 Ga. App. 317 (1973) 199 S.E.2d 639

JOHNSON
v.
FULMER.

48268.

Court of Appeals of Georgia.

Submitted June 1, 1973. Decided June 27, 1973.

Scott Walters, Jr., for appellant.

Albert A. Roberts, for appellee.

STOLZ, Judge.

1. In this action on account for damages of $6,720.97, the verdict and judgment for the plaintiff for $4,368.93 was within the range of the evidence; therefore, this court will not disturb the trial judge's overruling of the general grounds of the defendant's motion for a new trial. See Darby v. Evans, 94 Ga. App. 561 (95 SE2d 745) and cits.

2. The verdict being authorized by the evidence, the overruling of the motion for judgment notwithstanding the verdict was not error.

3. The trial judge did not err in sustaining the plaintiff's motion to strike the defendant's counterclaim based on failure of consideration, since the defendant did not carry his burden of proving with competent evidence the cost of putting the allegedly defective merchandise into merchantable condition. Steward v. Crenshaw, 58 Ga. App. 762 (199 SE 850).

Judgment affirmed. Eberhardt, P. J., and Pannell, J., concur.