Winter Bros. v. Jackson

Court of Appeals of Georgia

Winter Bros. v. Jackson

105 S.E.2d 233, 98 Ga. App. 234, 1958 Ga. App. LEXIS 552

CourtCourt of Appeals of Georgia

DecidedSeptember 4, 1958

Docket37242

StatusPublished

Cited by2 cases

This text of 105 S.E.2d 233 (Winter Bros. v. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Winter Bros. v. Jackson, 105 S.E.2d 233, 98 Ga. App. 234, 1958 Ga. App. LEXIS 552 (Ga. Ct. App. 1958).

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Opinions

Felton, Chief Judge.

1. The defendant contends that the amended petition did not contain a sufficient description of the property to- withstand a general demurrer. The contention is without merit. The following are representative of the descriptions of the various articles: “1 head for 200 gal. mixer, 42" over all, Yz" steel, seamless, value $180.00”, “1 contractor’s drum hoist and base, value $250.00”, “2 International centrifuges and 3 additional bronze heads, value $400.00”, “1 truck transmission, value $12.00”, “2 Turbula agitators 6", value $300.00”. It was alleged that the described articles were stolen by named persons during a period of several weeks in the spring of 1955, and were sold to the defendant by those named persons or by their agents who were known to the defendant’s officers. Construing the petition as a whole, the descriptions of the articles were sufficient to withstand a general demurrer. Roddenberry v. Fouche, 25 Ga. App. 148 (2) (102 S. E. 869); Redd & Co. v. Lathem & Sons, 28 Ga. App. 64 (110 S. E. 322); Graham v. Raines, 83 Ga. App. 581 (1a) (64 S. E. 2d 98).

2. The evidence show's that most of the articles stolen from the plaintiff were broken up into junk by the thieves prior to the sale to the defendant and to other junk yards in the area. The plaintiff testified that some of the articles stolen were recovered from other junk yards but that those items w'ere not sued for in this action. Some of the thieves testified. The gist of the testimony was that they took two loads of the “junk” and “scrap-iron” to the defendant’s place of business. The b.est description of the articles sold to the defendant was the testimony of Henry Harper Philpot who testified in part: “I went out there the first time, I went out there to get some copper cylinders laying around out there. Me and Peter and James Little went and we got, I [236]*236don’t know how many cylinders it was but we got them and some motor blocks and some angle irons. We taken it down there to Mr. Winter and sold it to' him.” The specific articles as described by the witness Philpot cannot be identified in the list attached to the petition and there was no evidence as to the value of these articles named by Philpot. While the evidence may have authorized a finding that two %-ton truckloads of “junk” or scrap iron Were sold to- the defendant, there was no evidence as to their value. The only evidence as to value was the testimony of the plaintiff that the value of each item listed on the exhibit to his petition was the true value of each item. This was not sufficient to authorize a finding as to the value of the “junk” sold to the defendant or of the articles named by Philpot. Since there was no such evidence the verdict was unauthorized.

The court did not err in overruling the renewed demurrer to the amended petition. The court erred in denying the motion for judgment notwithstanding the verdict, and the court is directed to enter a verdict in accordance with that motion.

Judgments affirmed in part and reversed in part with direction.

Nichols, J., concurs. Quillian, J., concurs specially.

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Felton, Chief Judge.

1. The defendant contends that the amended petition did not contain a sufficient description of the property to- withstand a general demurrer. The contention is without merit. The following are representative of the descriptions of the various articles: “1 head for 200 gal. mixer, 42" over all, Yz" steel, seamless, value $180.00”, “1 contractor’s drum hoist and base, value $250.00”, “2 International centrifuges and 3 additional bronze heads, value $400.00”, “1 truck transmission, value $12.00”, “2 Turbula agitators 6", value $300.00”. It was alleged that the described articles were stolen by named persons during a period of several weeks in the spring of 1955, and were sold to the defendant by those named persons or by their agents who were known to the defendant’s officers. Construing the petition as a whole, the descriptions of the articles were sufficient to withstand a general demurrer. Roddenberry v. Fouche, 25 Ga. App. 148 (2) (102 S. E. 869); Redd & Co. v. Lathem & Sons, 28 Ga. App. 64 (110 S. E. 322); Graham v. Raines, 83 Ga. App. 581 (1a) (64 S. E. 2d 98).

2. The evidence show's that most of the articles stolen from the plaintiff were broken up into junk by the thieves prior to the sale to the defendant and to other junk yards in the area. The plaintiff testified that some of the articles stolen were recovered from other junk yards but that those items w'ere not sued for in this action. Some of the thieves testified. The gist of the testimony was that they took two loads of the “junk” and “scrap-iron” to the defendant’s place of business. The b.est description of the articles sold to the defendant was the testimony of Henry Harper Philpot who testified in part: “I went out there the first time, I went out there to get some copper cylinders laying around out there. Me and Peter and James Little went and we got, I [236]*236don’t know how many cylinders it was but we got them and some motor blocks and some angle irons. We taken it down there to Mr. Winter and sold it to' him.” The specific articles as described by the witness Philpot cannot be identified in the list attached to the petition and there was no evidence as to the value of these articles named by Philpot. While the evidence may have authorized a finding that two %-ton truckloads of “junk” or scrap iron Were sold to- the defendant, there was no evidence as to their value. The only evidence as to value was the testimony of the plaintiff that the value of each item listed on the exhibit to his petition was the true value of each item. This was not sufficient to authorize a finding as to the value of the “junk” sold to the defendant or of the articles named by Philpot. Since there was no such evidence the verdict was unauthorized.

The court did not err in overruling the renewed demurrer to the amended petition. The court erred in denying the motion for judgment notwithstanding the verdict, and the court is directed to enter a verdict in accordance with that motion.

Judgments affirmed in part and reversed in part with direction.

Nichols, J., concurs. Quillian, J., concurs specially.

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105 S.E.2d 233, 98 Ga. App. 234, 1958 Ga. App. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winter-bros-v-jackson-gactapp-1958.

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