Opinion
33318.
DECIDED JANUARY 25, 1951. REHEARING DENIED MARCH 26, 1951.
Attachment; from Seminole Superior Court — Judge Geer. September 23, 1950.
Julian Webb, Custer Kirbo, for plaintiff.
P. Z. Geer, E. P. Stapleton, for defendant.
1. The evidence not demanding the verdict directed for the defendant, the court erred in not submitting the case to a jury.
2. The court erred in excluding the testimony referred to in special ground 6.
DECIDED JANUARY 25, 1951. REHEARING DENIED MARCH 26, 1951.
On July 5, 1949, Columbus Wine Company, a corporation, sued out a "fraudulent debtor's" attachment against Rupert Sheffield, a resident of Seminole County, alleging that the defendant was indebted to it in the sum of $2622.75, by virtue of a bank check, dated March 18, 1949, drawn on the Farmers Merchants Bank of Donalsonville, Seminole County, Georgia, given to it by the defendant in payment of certain liquors to be used in the operation of Roberts' Liquor Store at the county line of Seminole and Decatur Counties; that payment of this check was stopped by the defendant; that on May 24, 1949, the defendant conveyed in bulk the stock of liquor, together with the fixtures in this store to Willis Ausley, without complying with the provisions of the Bulk Sales Law of this State, contained in Code §§ 28-203-28-206, incl.; and that it was entitled to an attachment against said property and all other property of the defendant, as provided by law. This attachment was issued by the Superior Court of Seminole County, and levied upon "That certain stock of liquor and fixtures located in that certain building on the north side of State Highway 38 in Seminole County . . known as Roberts' Liquor Store," same being found in possession of said Ausley. Thereafter, at the January term 1950, the plaintiff filed its declaration in attachment, alleging in substance as above, and reciting the issuance of said attachment and the levy thereof. The plaintiff prayed for judgment against the defendant, Rupert Sheffield, for $2622.75.
The defendant filed his plea and answer, admitting the material allegations of the petition, but setting up: that he was not liable on the check, in that the same was given by him in payment of liquor sold in violation of the liquor laws of this State (Ga. L. 1937-38, Ex. Sess., pp. 103 et seq.), in that the same was sold by a licensed dealer, the plaintiff, to the defendant, who did not have a license to deal in liquors; that the plaintiff knew this, and therefore the sale was against public policy, contrary to law, and void; that the transaction was a misdemeanor; that the plaintiff could not collect for the sale of such liquor; and that he was not liable on said check. He set up that the sale was in violation of Code (Ann. Supp.) § 58-1036, which provides that it shall be unlawful for the holder of a license to sell liquor under said act to one not holding a license thereunder (Ga. L. 1937-38, Ex. Sess., pp. 103, 113). The defendant also set up that the sale of the liquor, to be delivered at a place other than his place of business, constituted a violation of the regulations of the Revenue Commissioner adopted under said act; that it was a misdemeanor to deliver liquor to a place other than the buyer's place of business; and that this also rendered said sale contrary to public policy and void, and the consideration paid therefor illegal and uncollectible.
The case came on for trial, and at the conclusion of the evidence the judge directed a verdict for the defendant. The plaintiff moved for a new trial, which was overruled, and it excepts.
The plaintiff insists that the court erred in directing a verdict for the defendant, in that there was a conflict in the evidence as to material facts, and error is properly assigned thereon in the motion for new trial as amended.
The evidence on the trial was substantially as follows: W. C. Godfrey, vice-president of the plaintiff corporation, testified in part substantially as follows: The license issued to the plaintiff was in force on March 18, 1949. On either March 16 or 17, the witness was working the South Georgia territory with a salesman, Joe King. He contacted the defendant as a customer. He had previously done business with W. B. Roberts, and the defendant had acted in previous transactions for the liquor store. King talked to the defendant privately and the witness talked to him. King sold him 50 cases of whisky, and the defendant said that he would get part of the order from his brother-in-law across the street, and would meet the witness at the County Line Liquor Store, which was the Roberts' Liquor Store, and complete the order and give them the specification of the kinds of liquor he wanted. The defendant came out there and gave the witness the specifications of the liquor he wanted. "He asked me [the witness] if we would deliver the merchandise from our truck to his truck, stating that he wanted to store it some place other than the store." The witness saw the retail liquor license at that time on the wall of the liquor store, and it was in the name W. B. Roberts. "When these goods were sent, we invoiced them to W. B. Roberts, the license holder." The plaintiff's manager in Albany called the defendant and gave him the amount of the invoice, and the defendant said he would go to the bank and get the money. He did not go to the bank, but gave the driver of the plaintiff's truck his personal check for the goods. The next day the driver turned the check in at the Albany branch of the plaintiff, from which the liquor was delivered. The check was deposited and returned, "payment stopped." The plaintiff reported to the Revenue Commissioner the sale of this liquor, and the giving by the defendant of the check on which he stopped payment, on two different occasions. The witness called the defendant by long-distance phone and asked him why he stopped payment of the check, and the defendant said: "If you will drop the suit against Joe Josey and myself in Bainbridge, I will pay the check. I have got you right where I want you. Now unless you drop the suit . . I am not going to pay the check."
On cross-examination, this witness testified that the sale of this liquor started in front of the defendant's mule barn and was completed at the County Line Liquor Store, and that King and he were present. The defendant asked them to go to the County Line Liquor Store and wait for him. "This particular liquor was billed to W. B. Roberts, Iron City, Georgia. I was not there when it was delivered by our truck to Mr. Sheffield's truck, but I told them it would be perfectly all right to deliver it to Mr. Sheffield. . . You have to make out a bill to some licensed dealer before you could transport that liquor through a dry county. This was made out to W. B. Roberts before our truck left. . . I can not say who signed for this bill of liquor at the time of delivery. . . I assume Mr. Sheffield did. . . I sold the liquor to W. B. Roberts, but Mr. Sheffield gave the order. . . It was general knowledge of every liquor dealer that serves this territory that Rupert Sheffield was a partner in the Bill Roberts' Liquor Store. . . The license was in the name of W. B. Roberts. Mr. Sheffield, prior to this transaction, had done a lot of business with us." The plaintiff introduced the copy of an invoice from it to W. B. Roberts.
The defendant testified in part substantially as follows: "At the time, Columbus Wine Company was trying to get me to pay a debt of Joe Josey's, which he had made with the company. . . Mr. Godfrey . . told me, `We know you didn't owe it, but we think we can make you pay it.' That sort of riled me up . . I started figuring a way to square the deal up." The defendant ran into King and "made a pass at him" about buying a big order of liquor. Mr. King said: "You are not a licensed dealer, I will have to take it up with the boss." Later, the defendant talked with both King and Godfrey, and "the deal was transacted and completed right in front of my mule barn, I never went to Bill Roberts' store that afternoon. . . my brother, Doc, was present at the time Mr. King and Mr. Godfrey were present. We sat there and planned the whole thing out. I was not a licensed dealer. I didn't have a store to deliver it to, and we planned to have the meeting on the road."
"Hill, the driver of my truck . . which was a liquor truck at that time . . turned off at Miller's crossroad." The trucks backed up to each other, and "we unloaded the liquor, from the plaintiff's truck to my truck." (We might state in this connection that the said Hill testified on cross-examination: "I was driving Mr. Sheffield's truck, and it was the truck used in connection with the liquor store").
The defendant stated that the liquor went into his mule barn and not to the store. "After I had given the check, the next morning, talked to Eager Howard and said, `Stop payment on that check.'" The defendant told Joe King, "I am not going to pay that check until they get off the suit in Bainbridge, and if they do that I will be happy to pay it because I owe that one; I don't owe the other one." He stated that there never was any conversation between him and King or Godfrey about his buying the liquor for Bill Roberts' store. "The reason King had to see Mr. Godfrey was that I didn't have a license." "I didn't have any license to deal in whisky . . at the time I bought this whisky from the plaintiff. I was not in partnership with Bill Roberts. I bought Bill Roberts' Liquor Store in May, 1949, kept it about three weeks and sold it to Ausley. I was not interested in the Roberts' Liquor Store at the time I bought this whisky." On cross-examination: "I bought the Bill Roberts' stock of goods about three weeks before I sold to Willie Ausley. That was in May, 1949. I put the 50 cases of whisky I got from `the plaintiff' in my mule barn. It might still be down there. I had rather not answer what I did with it, as it might incriminate me. The whisky never went into Bill Roberts' store. I bought Bill and my brother-in-law out in May or last of April, kept the place about three weeks. I had nothing to do with the store . . except go in and chat with them. I have never paid them the $2622. . . I said I gave him a check with the understanding that I was going to pay them cash; that was my understanding with Mr. Godfrey."
On redirect examination, the defendant testified that he sold Josey the liquor store known as White House Liquor Store, and that the plaintiff sued him for a debt of Josey's.
Doc Sheffield, a brother of the defendant, testified in part for him as follows: "I was present in May, 1949, when Godfrey and Joe King called on the defendant in regard to a liquor sale. They were in front of the mule barn. Rupert gave the order and did not ride off with the others anywhere. They left the defendant and me at the mule barn. I heard the conversation, and it was my understanding that my brother was buying the liquor for himself. I heard the arrangements about the delivery, and it was to be delivered out in the country and not go to the liquor store."
On cross-examination, he testified: "I am positive that it was in May of last year, I could not be mistaken about that — when the sale took place."
The plaintiff introduced in evidence, by agreement, the original record of the partnership contract between the defendant and W. B. Roberts, recorded in Seminole County on June 28, 1948, and dated June 25, 1948, reciting that a firm known as Roberts and Sheffield were to engage in the retail liquor business as "County Line Liquor Store," the same to be managed by one Hughes, and providing for an equal share in profits and losses.
Roy Whittle, brother-in-law of the defendant, testified in part for him as follows: "This agreement . . dated June 25, 1948, between Rupert Sheffield and W. B. Roberts . . was delivered to me on the date of the transfer on the back. I took over and operated, with Bill Roberts . . under that agreement. After that date (August 2, 1948) Rupert Sheffield had no interest whatsoever in that store. I traded with the plaintiff and had Mr. Bill Roberts in the store with me. Both Mr. Bill and I purchased merchandise from them and paid for it by check on Roberts and Whittle. I believe Mr. Roberts operated that store until April, 1949. He then sold the store to Mr. Rupert Sheffield."
On cross-examination, this witness testified: "I don't recall whether or not that transfer was ever recorded on the public records of this county. I imagine it was, I don't know. There is no evidence of it on the paper itself. I don't know if there was any notice to creditors, to the public, or not in the newspaper here, about Rupert Sheffield getting out of the partnership. I am not positive as to the date of the month. We sold it for about $10,000. . . I believe we had an oral agreement with Rupert, I don't know. I don't think any paper was signed at all. No paper was signed in exchange for $10,000. The deal was closed down there at my store in Donalsonville."
The defendant introduced the original partnership agreement between himself and Roberts, the record of which the plaintiff introduced, and on the back of the original the following unrecorded writing appears: "For value received, I hereby transfer and assign all my right, title and interest in and to the within partnership agreement to S. Roy Whittle, and the said S. Roy Whittle does hereby agree to all the terms and conditions of said agreement and will carry out the conditions required of the undersigned." This writing was dated August 2, 1948, and was signed by the defendant and agreed to by Roberts.
Bill (W. B.) Roberts testified in part for the defendant as follows: "Under this agreement [between himself and defendant dated June 25, 1948], Mr. Rupert Sheffield and I operated the County Line Liquor Store . . as a retail liquor place. We, or at least I, operated the store about five or six weeks. Roy Whittle then bought Rupert Sheffield out, and Roy and I ran the store after that time. I don't operate the store now, I sold it to Rupert Sheffield, but I don't remember the exact date, but it was somewhere about March or April. We got $10,000 for it. . . From the date of this transfer . . . Mr. Sheffield had no interest in that business."
Cross-examination: "The license was in my name, and I think the license run in my name until July, 1949. I sold out to Mr. Sheffield in March or April, 1949. . . I would not be positive. The $10,000 was paid cash. . . I gave him a bill of sale but don't know where it is. . . I gave that bill of sale to Rupert Sheffield, and so far as I know he still has it. . . The time that he had the store he was operating it under my license."
Willie Ausley testified for the defendant in part substantially: that he operated this liquor store the latter part of 1948, and the first part of 1949; that he was operating it for Whittle and Roberts and the license was then in their name; that during the time he operated the store, he bought merchandise from the plaintiff; that he ran the store from August 1 to sometime in April, 1949; that, when he quit working for them, the defendant bought the store; that the defendant kept it about four or five weeks and sold it to him; and that neither the plaintiff nor the defendant caused the 50 cases of liquor to be put in the store the last two or three months before he quit operating it. On cross-examination, Ausley testified that he bought the store from the defendant in May, but that he does not have the bill of sale that the defendant gave him; that he has filed a claim for the liquor levied on, claiming it as his; that he paid the defendant $9750 for the business, and bought it on credit and gave him notes and security for it; that "Mr. Sheffield has been fooling with this business down there as long as I have been connected with it"; and that the witness has seen the defendant down there figuring with Mr. Roberts on buying him out.
The defendant, recalled, testified: "This is my signature on this agreement which was transferred on the back to Roy Whittle; that from the date of this agreement on June 25, 1948 to the date I transferred it, W. B. Roberts and I operated the County Line Liquor Store. After that, I sold my interest to Roy Whittle, my brother-in-law. After I sold out to Whittle, I later bought the store back from Roy and Bill in the summer of 1949. That was about a couple of months after I bought the 50 cases of liquor being sued for today. . . I have offered Columbus Wine Company to pay them, I would say 15 or 20 times, if they would dismiss the suit in Decatur County. I have offered to pay them every time they brought it up."
On cross-examination: "When I bought in this business, the County Line Liquor Store, I bought a half interest from Roberts, that was in June, 1948. I did not testify this morning that I had not had anything to do with that County Line Store with Roberts, until I bought it from Whittle and Roberts. I did not say that. I did not have a bill of sale from Roberts and Whittle. I said I didn't have a bill of sale and I did not say I had ever had one, I don't remember. I bought and sold several liquor stores . . when I sold out to Whittle he paid me $4500 for my half interest. He paid me in cash, not by check. I am positive that it was in money. I did not record that transfer from me to him. I didn't think it was necessary to record transfers. I didn't run any notice in the paper advertising to the world that I had withdrawn from the partnership. All I did was take the $4500 and transferred to him my half interest and gave him the liquor."
1. From the foregoing portions of the material evidence, the evidence tended to show that the plaintiff sold this liquor to the defendant, under the assumption that he was acting either as a partner or as an agent or in behalf of W. B. Roberts and the County Line Liquor Store; and that the plaintiff company, a licensed wholesale liquor dealer, did not knowingly sell this order of whisky in violation of Code (Ann. Supp.) § 58-1036, which provides: "It shall be unlawful for such licensee under section 58-1034 to sell or dispose of any such liquors in any county or counties wherein the sale of such liquors is forbidden by the terms of this Chapter, or to sell to any one not holding a wholesale or retail license granted under the terms of this Chapter" (Ga. L. 1937-38, Ex. Sess. pp. 103, 113), which is made a misdemeanor under the act (Code, Ann. Supp., § 58-1069, Ga. L. 1937-38 Ex. Sess., pp. 103, 121). In fact, a jury might well have found, under all the facts, and the conflict in material portions of the testimony, that the defendant was either a partner in the liquor store or had some interest therein, or was acting and had been acting for the store with authority. One of the defendant's witnesses testified: "Mr. Sheffield has been fooling around this business [The County Line Liquor Store] down there as long as I have been connected with it"; and it appeared that he had operated and managed the business for Roberts and the defendant's brother-in-law, Whittle, from August, 1948, to March or April, 1949, when the defendant admitted he acquired the same. The plaintiff's vice-president testified: "When these goods were sent, we invoiced them to W. B. Roberts, the license holder." This witness also testified that the sale was completed at the County Line Liquor Store. The defendant denied this, and said it was "made in front of the mule barn." The defendant testified that he was not in partnership with "Roberts — I bought Bill Roberts' Liquor Store in May, 1949, kept it about three weeks, and sold it to Ausley"; and there was in evidence the record of a partnership contract between the defendant and Roberts for this liquor store made in June, 1948. The agreement was recorded. The defendant introduced in evidence the original agreement, and on its back under date of August 2, 1948, appeared an assignment by the defendant of his interest in the store to Whittle, his brother-in-law. This was not recorded. The plaintiff's vice-president also testified that it was common knowledge among the liquor dealers that the defendant was a partner in the Roberts' Liquor Store. It appeared without dispute that Sheffield stopped payment on the check given by him to the plaintiff's truck driver for this liquor, which was invoiced to Roberts, the license holder, because the plaintiff was seeking to hold the defendant liable on a debt which arose out of a sale of liquor by the plaintiff to one Josey, to whom the defendant had sold a liquor store, and which the defendant claimed he did not owe; and that the defendant offered to pay this check if the plaintiff would not hold him liable on the Josey claim, which was in suit in Decatur County. "A verdict should not be directed unless there is no issue of fact, or unless the proved facts viewed from every possible point of view, can sustain no other finding than that directed"; and "where there is conflict as to any material issue of fact," it is error to direct a verdict. See Davis v. Kirkland, 1 Ga. App. 5 ( 58 S.E. 209); Code, § 110-104.
Before this court could hold that the transaction whereby the plaintiff sold this lot of liquor was in violation of the Code (Ann. Supp.) § 58-1036, it would have to appear without dispute that the plaintiff company, then a licensed wholesale liquor dealer, knowingly sold to the defendant, who did not have a license to deal in liquor, this lot of liquor, and this does not appear. The transaction was not as a matter of law a palpable violation of the provisions of the act of 1938 (Ga. L. Ex. Sess. 1937-38, pp. 103, 113), as embodied in Code (Ann. Supp.) § 58-1036, insofar as the plaintiff was concerned.
2. But it is contended by the defendant that it appears without dispute that the whisky was delivered by the plaintiff to the defendant at a place other than the County Line Liquor Store, and that the plaintiff agreed so to deliver the liquor; and that, this being in violation of a regulation of the Revenue Commissioner, prohibiting the delivery of liquor at any place other than to the place of business of the person ordering the same, the sale was, as a matter of law, illegal and against public policy. No such rule or regulation of the Revenue Commissioner was introduced in evidence; and this court will not take judicial cognizance of rules and regulations of the commissioner. Furthermore, the act authorizing the sale of liquors in those counties adopting its provision does not prohibit the delivery of liquor sold by a licensed dealer to a place other than the place of business of the buyer. Ga. L. 1937-38, Ex. Sess., pp. 103 et seq. In these circumstances, even though the Revenue Commissioner is given authority to make reasonable rules and regulations for the enforcement and administration of this law (Ga. L. 1937-38, Ex. Sess., pp. 103, 108; Code, Ann. Supp., § 58-1022), the commissioner could not, by regulation, make penal and punish therefor as a misdemeanor, something which is not made penal under the law itself; but he could enforce the regulation only by suspension or cancellation of the license of the offending party or parties. See Glustrom v. State, 206 Ga. 734 ( 58 S.E.2d 534), and also Bernstein v. Peters, 69 Ga. App. 525 ( 26 S.E.2d 192). See also State of Georgia v. Schafer, 82 Ga. App. 753 ( 62 S.E.2d, 446). It follows that this contention of the defendant is without merit.
3. Counsel for the defendant in error enthusiastically insists that the court did not err in granting the nonsuit, and cites various statutes and decisions to support this contention, among them Bernstein v. Peters, 68 Ga. App. 218 (1-a) ( 22 S.E.2d, 614); Code (Ann. Supp.), § 58-1001 (Ga. L., Ex. Sess., 1937-38, pp. 103, 105); and also Code (Ann. Supp.), §§ 58-1011, 58-1022, 58-1024-58-1026, 58-1030-58-1032, 58-1065, 58-1069, 58-1070, and Code §§ 20-501 and 20-504. These last two sections deal with the invalidity of an immoral contract and a contract against public policy. Counsel also cites Commercial Bank of Athens v. Cohen, 34 Ga. App. 756 (1) ( 131 S.E. 117); Wright Co. v. Haralson, 52 Ga. App. 27 (2) ( 182 S.E. 55); Garrison v. Burns, 98 Ga. 762 ( 26 S.E. 471); Abbott Furniture Co. v. Mobley, 141 Ga. 456 ( 81 S.E. 196); Harris v. Barfield Music House, 18 Ga. App. 444 ( 89 S.E. 592); Bryson v. Keith, 186 Ga. 616 ( 199 S.E. 110), and cites, in addition, Code §§ 96-101 and 96-107, relating to the essentials of a sale; § 38-402, regarding admissions of pleadings, etc.; § 38-104, with reference to presumptions of law; and a number of decisions, relating to the provisions of the last two Code sections mentioned, which decisions we will not here enumerate. With reference to the contentions of distinguished counsel for the defendant in error, after giving much time and consideration to the facts here involved, and the law called to our attention by counsel both for the defendant in error and for the plaintiff in error, we have reached the conclusion that the weakness in the contentions of the defendant in error is not that the statutes and decisions cited are erroneous as pronouncements of correct principles of law, but the weakness is found in the assumption that the facts of this case invoke their application. As we have observed — as borne out by the evidence quoted hereinbefore — it appears to us clearly that, whether the sale was legal or illegal and whether the defendant Sheffield was an authorized agent of the W. B. Roberts Liquor Store, or a partner therein, presented questions for the jury to determine, and not a matter of law, as to whether or not the defendant Sheffield should prevail.
While, as we have observed, the question of whether the contract of the sale of this whisky was illegal or void, was a jury question, we might here call attention to White v. Crew, 16 Ga. 416, wherein the Supreme Court said: "Where an illegal or fraudulent contract has been made, neither courts of law or equity will interpose to grant any relief to the parties, but will leave them where it finds them, if they were equally cognizant of the illegality or participated in the fraud, unless in cases where the public policy would be promoted." [Italics ours.]
We might well, in this connection, call attention to the fact that, if the defendant Sheffield was in this transaction under a duty to speak to the effect that the liquor in question was not properly invoiced, and he received it when he should have refused it, he is estopped from denying what his silence imports. See Smith v. Folsom, 190 Ga. 460 ( 9 S.E.2d 824); Warner v. Hill, 153 Ga. 510 ( 112 S.E. 478); J. R. Watkins Co. v. Rivers, 37 Ga. App. 559 ( 140 S.E. 770); Wall v. Mount, 121 Ga. 831 ( 49 S.E. 778). There are numerous other decisions to the same effect which we will not cite.
So far as the general grounds are concerned, the court erred in granting a nonsuit.
4. We come next to deal with special ground 6, and quote that ground in full: "Ground 6. Because the court excluded the testimony of the witness, Joe J. Josey, who, after having sworn that a partnership existed between himself and Rupert Sheffield, that — upon conveying the liquor store and stock of liquor to Sheffield, they had an agreement whereby Sheffield was to pay the debts of the business — the question was asked, `And Mr. Sheffield agreed to assume the debts of the business when he took it over?' The witness answered, `Yes, sir.' The defendant objected to the testimony of this witness that Rupert Sheffield assumed the payment of the indebtedness upon the ground that, under the statute of frauds and under the law, any promise to answer for the debts, default, or miscarriage of another must be in writing; secondly, upon the ground that the testimony of the witness varies and contradicts the terms of the written agreement between him and Sheffield, in which he conveyed to Sheffield the real estate described in a deed recorded in Deed Book 17, page 496, and all merchandise in the building consisting of liquor and beer and other property in said building, and this transaction cancels all indebtedness of Joe J. Josey to Rupert Sheffield. The objection of the defendant was sustained by the evidence ruled out. Movant insists that certain evidence was admissible, since the fact of partnership had been established by the witness, and both partners were primarily liable for the debts of the business, and the transfer of the partnership assets to one partner supported his primary assumption of the debts of the partnership as between the partners; and that such an agreement did not necessarily have to be in writing, nor is the same within the statute of frauds or at variance with the written contract referred to in the objection. Movant insists that the ruling of the court rejecting this testimony was erroneous."
From the statement of facts it appears that the defendant Sheffield stated in effect that he would be willing to pay the amount of the check in question if the plaintiff in error would release him in connection with the indebtedness of the liquor business formerly owned by Josey and Sheffield. It appears that Josey transferred his interest in this liquor business to Sheffield. Josey was, according to the record, introduced as a witness in behalf of the plaintiff in error. He testified that such a partnership did exist between the two of them, that a transfer of the business to Sheffield was consummated, and that Sheffield did agree to assume the debts of the liquor store so transferred owing to the plaintiff in error. Both of them are primarily liable to the plaintiff in error for this partnership debt. It seems to us that any transaction as between them could not affect the debt owing to the plaintiff in error. As a member of the partnership, the defendant in error was primarily liable for this partnership debt; and, since the indebtedness of the partnership was given by the defendant Sheffield as a reason for not paying the debt in question, the evidence of Josey should have been allowed to go to the jury even though it involved a minor and collateral issue. Under the record of this case, the exclusion of this testimony was harmful and reversible error.
Judgment reversed, MacIntyre, P. J., and Townsend, J., concur.