Neff v. Daniel

Jenkins, P. J.

The verdict for $235.40 and interest as sued for was authorized. The petition alleging this amount as due merely “for wages,” and the attached statement of account describing the amount only as an “unpaid balance due on wages earned,” there was no variance between the allegata and probata, where, although the testimony showed that the amount included earnings both of the plaintiff and his wife, the testimony also showed that the plaintiff “made the trade for himself and wife also, . . that he received her earnings,” and that under this arrangement the previous partial payments for the wages of both had been made by check to the plaintiff alone. See Mock v. Neffler, 148 Ga. 25 (3) (95 S. E. 673); Cotter v. Gazaway, 141 Ga. 534 (81 S. E. 879). The fact that the jury heard a statement by the plaintiff that the defendant “did not sign up with the N. R. A.” was not ground for a new trial, where the court on motion of the defendant ruled out the testimony and instructed the jury not to consider it, especially where the defendant failed to move for a mistrial.

Judgment affirmed.

Stephens a/nd Sutton, JJ., concur.