McGovern Bros. & Lott v. Winstead Medicine Co.

68 S.E. 951, 8 Ga. App. 277, 1910 Ga. App. LEXIS 127

Opinion

Russell, J.

The court erred in directing a verdict for the plaintiff. The execution of the written order for the goods was not proved, nor the fact that the defendants ever received or accepted the shipment. If the plaintiff had sued upon the order, the defendant would have been obliged to d'eny its execution in a sworn answer, but when the contract was introduced in evidence in support of the account, the defendant had the right to insist upon proof of its execution; and the fact that the contract, apparently executed” at Holton, Louisiana, was sent by the plaintiff’s Louisiana salesman, purporting to he signed by a Arm doing business in Douglas, Georgia, did not prove that the latter had signed it. If the plaintiff had proved that the defendants gave the order, the proof of the delivery of the goods to a common carrier would have established a prima facie right of recovery; but proof of delivery to the carrier, without more, raised no presumption that the goods were bought or received by the defendants. Judgment reversed.