Opinion
28248.
DECIDED MAY 16, 1940.
Complaint; from Carroll superior court — Judge Wyatt. December 15, 1939.
Boykin Boykin, for plaintiff.
R. Terry, J. L. Smith, for defendant.
The court erred in overruling the motion for new trial.
DECIDED MAY 16, 1940.
The plaintiff instituted an attachment against the defendant, for the purchase-price of certain phonograph machines, alleging a balance due of $768.46. The levy was made, and the declaration in attachment was filed. The defendant admitted the execution of the note sued on, and the purchase and delivery to him of the machines described, but alleged that the plaintiff had taken back certain of the machines of a named value, and certain other articles of a named price, which amounted, together with certain services performed for the plaintiff, to the aggregate sum of $625. The amount and correctness of the credits claimed were in sharp dispute. The jury returned a verdict in favor of the plaintiff for $50.14. Conceding that the jury correctly decided all the contested issues in favor of the defendant, the evidence demanded a verdict in favor of the plaintiff for $143.46, the difference between $768.46, the amount admitted to be due on the note, and the highest claimed total credits thereon, $625. Under the pleadings and the evidence, a larger verdict in favor of the plaintiff having been demanded, he could except to the one rendered. The court erred in overruling the motion for new trial.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.