Opinion
33466.
DECIDED JUNE 9, 1951.
Suit on account; from Berrien Superior Court — Judge E. R. Smith. December 29, 1950.
McCall Griffis, for plaintiff.
J. P. Knight, for defendant.
1. The refusal of the request to charge, as complained of in special ground one of the motion for a new trial, was not erroneous, since a portion of the request did not state a correct principle of law. (a) The other portion of the request was charged substantially as requested.
2. A correct instruction is not rendered erroneous by the failure of the trial court to give in connection therewith some other pertinent legal proposition.
3. The evidence authorized the verdict.
DECIDED JUNE 9, 1951.
Burton and class sued W. Guy Connell on an open account for a balance of $1550.51 and interest, for certainly potatoes sold by the plaintiff's to the defendant. The defendant answered, denying the indebtedness or that the amount was past due and by way of further answer alleged that at least 80 percent of the potatoes purchased by the defendant, when received at the defendant's place of business in Nashville, Georgia, were found to be frozen and unfit for human consumption, and were a total loss. The evidence tended to show that the defendant purchased of the plaintiffs two lots of potatoes, totaling 502 sacks and was billed a total of $1782.20 therefor; that thereafter plaintiff credited to defendant's account $231.69, leaving a balance of $1550.51, the amount sued for; that defendant's truck drivers took delivery of the potatoes on two separate occasions under a shed in Baltimore, Maryland, at times when the weather was cold; that they told the plaintiff, Burton, who was present at the time, that the potatoes were freezing, but Burton told them that if they were not all right they (the plaintiffs) would make them good; that defendant's trucks were good trucks with van trailers, insulated and would keep anything from freezing; that after taking delivery of the potatoes, the trucks were on the road some thirty odd hours coming south, and that the weather got warmer as they came south; that when the trucks arrived at defendant's place of business in Nashville there was evidence of spoilage in the sacks of potatoes, and that subsequently approximately 80 percent of the potatoes, had to be dumped in the woods because they had been frozen; that the defendant repeatedly sought an adjustment of the account because of this spoilage and plaintiffs promised to adjust it, but had not done so; that taking into consideration the spoilage and the amounts credited on the account, only $124.75 was due on the account. The plaintiff's evidence was simply to the effect that the potatoes were in good condition when delivered to defendant's drivers; that defendant subsequently sent a check in payment for one of the lots of potatoes, but this check was returned marked "insufficient funds"; and that defendant never made any complaint about the potatoes or the account until after suit was filed. The jury returned a verdict for the plaintiffs for $124.79, substantially the amount admitted by the defendant to be due. The plaintiffs made a motion for a new trial on the general grounds which was amended by the addition of two special grounds. The trial court overruled that motion, and the exception here is to that order.
1. The first special ground of the motion for a new trial complains of the refusal of the court to give the following request to charge: "I charge you further, that if you find under the evidence submitted and the law given you in charge; that after defendant has ample opportunity to examine the potatoes, the subject matter of the suit,. that he gave checks to be credited on the account sued upon, that the giving of the checks with knowledge of the defects in the potatoes at the time, would bind said plaintiff to pay on the account, at least the amount represented by said checks.
"I charge you further, that said defendant having admitted a balance due plaintiff by his answer in the amount of $124.79; that in no event could you find a verdict for plaintiff in a lesser amount [than] the amount admitted to be due as aforesaid."
The first paragraph of this request does not state a correct principle of law. "After acceptance of goods purchased, and the presumption is that they are of the quality ordered, and the burden is on the buyer to prove the contrary. Partial payment, with knowledge of the defective condition, will not stop the buyer from pleading partial failure of consideration." Code, § 96-305. In Pearson v. Brown, 105 Ga. 802 (2) ( 31 S.E. 746), it was held: "That the maker of a promissory note, after its maturity, addresses to the payee one or more letters in which he asks for indulgence and promises to pay the note if its collection is not pressed, will not operate to stop him from subsequently setting up the defense of partial failure of consideration, notwithstanding the facts upon which this defense is based were well known to him at the time he wrote the payee to the effect stated." See Maxwell Bros. v. Harrison, 25 Ga. App. 14 (1) ( 102 S.E. 372); Pitts Shoe Co. v. Stein, 25 Ga. App. 162(2) (103 S.E. 415).
As to the second paragraph of this request the court charged the jury that "it is admitted, gentlemen, that the plaintiffs are entitled to recover the sum of $124.79, and in any event, whatever you do, you will return a verdict for that amount in favor of the plaintiffs." Under these circumstances, this portion of the request must be treated as having been granted by the court. Under these circumstances this assignment of error is without merit.
2. The second special ground of the motion complaints that the trial court instructed the jury: "Now, gentlemen, I charge you that the burden is on the plaintiffs to prove their case by a preponderance of the evidence in the case; and you will find in this case in favor of the party, plaintiff or defendant, with whom you find the preponderance of the evidence to lie upon the issues involved in the case," without qualifying this charge as follows: "After acceptance of goods purchased, the presumption is that they are of the quality ordered, and the burden is on the buyer to prove the contrary. Partial payment, with knowledge of the defective condition, will not stop the buyer from pleading partial failure of consideration. It has been repeatedly held by both this court and by the Supreme Court that an instruction correct in and of itself is not rendered erroneous by the mere failure of the trial court to give in connection therewith also another pertinent and legal instructions. Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505(3), 509 (71 S.E. 887); Morgan v. Brown, 71 Ga. App. 401(2) (31 S.E.2d 208); Belvin v. Beard, 77 Ga. App. 681 (2), 685 ( 49 S.E.2d 546).
3. The evidence authorized the verdict, and no error of law appearing, the trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. Sutton, C.J., and Felton, J., concur.