Dudley v. Isler

94 S.E. 827, 21 Ga. App. 615, 1918 Ga. App. LEXIS 431

• Court: Court of Appeals of Georgia
• Decided: January 22, 1918
• Docket: 8831
• Status: Published

Opinion

Jenkins, J.

Isler brought a suit in trover against Dudley for the recovery of a certain mule, and obtained a verdict against the defendant. The defendant made a motion for a new trial, on the general grounds, and on’the grounds that the court refused to grant a nonsuit, and refused to direct a verdict; the motion for a new trial was overruled, and he excepted. The evidence in the record presents the following case: Plaintiff testified that the mule in controversy was worth $125, and introduced in evidence a paper, 'a copy of which is as follows: “Jan. 23, 1913. Account against Bill Dudley. Due B. Isler, one hundred and twenty-five dollars and eighty-one cents, on one black mare mule name Lula, age 10 years. Due Nov. 15, 1913. [Signed] William Dudley.” The plaintiff first testified that this was the basis of his suit (we presume on the theory that it embraced a valid bill of sale to the property therein described), but later on he testified that when it became due the defendant could not pay it, and that subsequently, some time in January, 1915, defendant sold him the mule to pay this debt, and that it was on this sale that he based his suit. He admitted that the mule was never actually delivered to him, and testified that it remained in the possession of the defendant, under an agreement that the latter might keep it for the purpose of hauling lumber for himself. He further testified that he did not, at the time of the álleged sale, either turn over to the defendant his note, or take from him any bill of sale or other writing regarding the sale of the mule. The defendant denied the indebtedness represented by the paper introduced in evidence, and denied that he ever sold the mule to the plaintiff.

The paper introduced in evidence was insufficient in itself to show title to the mule in plaintiff, and especially is this true when it is taken in connection with the plaintiff’s evidence. Nor is there in the evidence anything sufficient to authorize the holding that a subsequent sale was effected between the parties; nothing being there relied upon other than the mere parol unexecuted agreement for the sale of property, the value of which exceeded fifty dollars. The verdict, therefore, being without evidence to support it, is contrary to law, and the trial court erred in not setting it aside and granting a new trial.

Judgment reversed.

Wade, G. J., and Luke, J., concur.