White Provision Co. v. Brown

150 S.E. 857, 40 Ga. App. 674, 1929 Ga. App. LEXIS 703

Opinion

Bell, J.

1. “A judgment of the judge of the superior court, refusing in ' the exercise of his discretion to sanction a certiorari, will not be reversed unless a verdict for the petitioner was demanded.” Adams Tailoring Co. v. Thomas, 31 Ga. App. 787 (122 S. E. 246), and cit.

2. In the instant suit on open account for the purchase-price of five tubs of lard, where, although it was shown, without dispute, that one shipment had been delivered to a common carrier for transportation to the defendant, and had actually reached the point of destination and been receipted for by a drayman who was accustomed to receive shipments to the defendant and deliver them to him, the defendant having contended and testified that the merchandise originally ordered by him was not received, and that he so informed the representative of the plaintiff, who agreed to duplicate the order, and that he later received the shipment and paid for it, and that the first order was never received by him, the jury in the justice’s court were authorized to find that the shipment actually made and received was to fill the duplicate order, that such shipment was the only one made, and that it was paid for. Accordingly, the judgment of the superior court refusing- to sanction the plaintiff’s petition for certiorari, which assigned error upon the verdict and judgment as being contrary to law and without supporting evidence, can not be disturbed. Judgment affirmed.

Jenkins, P. J., mid Stephens, J., concur.