Ayash v. Georgia Show-Case Co.

87 S.E. 689, 17 Ga. App. 467, 1916 Ga. App. LEXIS 697

• Court: Court of Appeals of Georgia
• Decided: January 11, 1916
• Docket: 6449
• Status: Published

Opinion

Broyles, J.

1. The court erred in sustaining the special demurrers to the answer, as they were not filed before the trial term.

2. The plaintiff having elected to bring his suit in trover, instead of suing upon the contract, the admission in evidence, .over appropriate objection, of the written contract between the parties, for any other purpose than to show title in the plaintiff, was error.

(a) Any special terms or stipulations in the contract that might affect the rights of the parties if the suit had been to enforce the contract can not be considered in a trover suit. Moultrie Repair Co. v. Sill, 120 Ga. 730 (4), 732 (48 ¡3. E. 143) Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S. E. 802) ; McCord v. Sill, 10 Ga. ■ App. 254 (73 S. E. 559).

3. The suit being in trover, the court erred in refusing to allow the defendant to prove that “the goods .shipped under the contract . . were not the same as the goods bought by the defendant, but different materially therefrom.” This evidence was admissible on the question of whether the defendant was in possession of the particular property ■sued' for.

Decided January 11, 1916.

Trover; from city court of Americus — Judge Harper. February 5, 1915.

' Ellis, Webb & Ellis, for plaintiff in error. Shipp &. Sheppard, contra.

4. The suit being in trover, the plaintiff could not enlarge his action by any special stipulations contained in a written contract, and it was therefore error for the court to charge, that, under the contract, if the . defendant, detained the property for thirty days without rejecting it, he would be bound for the payment of the purchase-money therefor.

5. The verdict was contrary to law, because the plaintiff has no right to recover the value of the property sued for in trover, without first surrendering, or offering to surrender, the order-contract between the parties, and the notes given by the defendant for the purchase-price of the property. Tidwell v. Burkett, 81 Ga. 84 (6 S. E. 816); Moultrie Repair Co. v. Hill, supra.

6. The remaining grounds of the motion for a new trial are without merit, ;.or are based upon errors not likely to recur upon another trial.

Judgment reversed.