Opinion
35617.
DECIDED APRIL 20, 1955.
Action on account. Before Judge Boykin. Troup Superior Court. January 25, 1955.
Wilson P. Darden, for plaintiff in error.
Joseph C. Jackson, contra.
1. Where, in a suit on account, the plaintiff's evidence proves the case as laid and the defendant offers no proof of an issuable defense, the trial judge properly directs a verdict in favor of the plaintiff.
2. Where, by way of defense to a suit on an account, the defendant, a contractor, pleaded that certain fabricated flues comprising the items of the account were furnished him to be used in the construction of a building for the Federal Housing Authority according the blueprints of the building and subject to approval of the housing authority's inspector, and that the flues were not of the size required by the blueprints and were not approved by the Housing Authority's inspection, such defense was not sustained by evidence that failed to show any agreement on the part of the seller to furnish flues that would meet the housing inspector's approval, or any warranty that the flues were of the size called for by the blueprints of the building in which they were to be installed. Especially is this true when the evidence showed that the flues did not conform in size with the requirements of the blueprints and that this was apparent when they were delivered, but they were, nevertheless, accepted and used by the defendant.
3. A ground of a motion for new trial, complaining that the court directed a verdict for the opposite party before the movant had an opportunity to introduce a letter in evidence, does not show error where the contents of the letter or that it related to the issues of the case does not appear either in the ground itself or elsewhere in the record.
4. Compliance with an order requiring the production of a document waives the right to except to the order. Mayor c. of Macon v. Humphries, 122 Ga. 800 (1) ( 50 S.E. 986); Bridges v. Southern Ry. Co., 137 Ga. 107 ( 72 S.E. 892).
5. Where building materials are purchased by a contractor to be used in the construction, improvement, or repair of the house of the party who engages the contractor, such materials are not bought for the purpose of resale within the meaning of the Sales and Use Tax Act, so as to be exempt from sales tax.
6. Code (Ann. Supp.) § 92-3415 (a) (Ga. L. 1951, pp. 360, 373) provides that the dealer shall until paid have the right to recover of the buyer sales taxes due upon the articles sold in the same manner as other debts.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.