Opinion
33122.
DECIDED JUNE 21, 1950. REHEARING DENIED JULY 26, 1950.
Action on account; from Lumpkin Superior Court — Judge Edmondson. March 25, 1950.
Weir S. Gaillard, for plaintiff in error.
J. F. Pruitt, Everett C. Brannon, Herman J. Spence, contra.
Where the evidence, with all reasonable inferences therefrom, demands a particular verdict, and there is no conflict in the evidence as to material issues, it is proper for the court to direct the jury to return such verdict.
DECIDED JUNE 21, 1950. REHEARING DENIED JULY 26, 1950.
Ed Christian sued O. G. Seabolt before a justice of the peace in and for Lumpkin County, Georgia, seeking to recover of the defendant $200 principal and $2.50 interest, same being claimed by the plaintiff of the defendant as the balance due on the purchase-price of certain timber bought by the defendant from the plaintiff, the defendant having agreed to pay $300 for the timber of which $100 had been paid. The defendant denied liability and denied that he was indebted to the plaintiff in any amount, and alleged that the account sued on was based upon negotiations for the sale of standing timber, which were not reduced to writing, and not signed by the defendant nor by any one authorized by the defendant, and that at the time the plaintiff did not own the land on which this timber stood, and not knowing this "defendant paid him $100 by mistaken belief plaintiff owned the land." The defendant prayed for "reimbursement" and that the relief sought by the plaintiff be denied.
The issue thus formed was tried before the justice of the peace and judgment rendered in favor of the plaintiff, and within the time prescribed by law "in accordance with Code § 110-603," the defendant appealed to a jury in the superior court of said county.
On the trial in the superior court the evidence tended to establish without dispute that the defendant agreed to purchase from the plaintiff certain standing timber for $300; that the defendant paid the plaintiff $40 cash on that day; that the transaction was a sale for cash; that the defendant moved his sawmill near this timber and began cutting same, paying the plaintiff $60 more on the purchase-price; that he did not inform the plaintiff he was cutting the timber; that he promised the plaintiff to pay the balance "dozens of times"; that no agreement in writing was executed by the parties; that the defendant "cut every foot he wanted and come out of his own accord," and that "he moved every bit he cut and sold it." The defendant testified that he entered into the agreement with the plaintiff and paid him $40 and was to pay the balance of $260 when the contract was drawn up and the lot numbers of the land ascertained and embodied in it, and that the plaintiff told him to move on in and start cutting the timber and "I wanted to pay him the balance of $260, provided he signed the contract, but he did not want to sign the contract;" that plaintiff "said to just wait until we got in there and he would figure out how much lumber" he would have to have to build some chicken houses and then "I could pay the balance." A witness for the defendant testified: "We just went over there and bought the timber for $300 and paid $40 down on it and was to get this timber and all between the branches and Ed (plaintiff) told us it would not make any difference about the rest of the money, to go ahead and move in there. We went over there and cut about 8000 feet and left about 2500 feet over there and moved the mill out. That was merchantable timber that we left. It could have been used. We never did go back and get it." Another witness testified for the defendant that he heard the defendant ask the plaintiff if he had a deed to the land on which this timber stood, and the plaintiff said he did not, but that he owned the property and did not have a deed for it.
The plaintiff thereupon moved the trial judge to direct a verdict in his favor, which motion was granted and the jury directed to return a verdict in favor of the plaintiff and against the defendant for $200, with interest from Jan. 12, 1949, and judgment was entered thereon accordingly.
The defendant then moved for a new trial generally and by amendment added one special ground in which he assigned error on the action of the trial judge in sustaining the following motion, made by the plaintiff after the conclusion of the evidence: "We move the court to direct a verdict for the plaintiff. . . Defendant has not made an issue. To the contrary he and his witnesses have verified the fact there was a $300 contract to purchase the timber and cut and move it and they have only paid $100. There is no issue before the jury about it." The defendant responded that the plaintiff "should have shown some interest in that property that would have entitled them to trade with Mr. Seabolt. He said he owned it, but he did not have a deed." The court thereupon directed a verdict for the plaintiff and against the defendant for the $200 sued for. To this ruling the defendant excepted and assigned error thereon as being contrary to law in that under the pleadings and evidence there were issues of fact which should have been submitted to the jury and evidence introduced which would have authorized a jury to find a different verdict from that directed by the court.
The trial judge overruled the defendant's motion for a new trial, as thus amended, and to this judgment the defendant excepts.
"Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code § 110-104. Where there are no material issues of fact, it is proper for the trial judge to direct a verdict in favor of the party entitled thereto under the evidence submitted. Lott-Lewis Co. v. Bingham-Hewett Grain Co., 28 Ga. App. 728 ( 113 S.E. 222). The mere fact that there are conflicts in the testimony does not render the direction of the verdict erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded. Dorris v. Farmers Merchants Bank, 22 Ga. App. 514, 518 (5) ( 96 S.E. 450), and cit; Stanfield v. McConnon Co., 25 Ga. App. 226, 230 (2) ( 102 S.E. 908).
This contract, whether in writing or not, and whether the transaction for this timber was for cash or not, was a valid one. There is no dispute about its having been entered into. The evidence demanded a finding that this contract was entered into and that the defendant had cut and sold the timber — the subject-matter of the contract. No other finding could have been made by the jury under the evidence but that the plaintiff sold or agreed to sell this timber for $300 and that the defendant had paid the plaintiff only $100 of this amount, although it appeared that he had cut and sold the timber. There was no dispute as to any material facts in the evidence. The situation was not one where the defendant could set up the statute of frauds (Code §§ 20-401 (4), 20-402). While it is true that a contract for the sale of standing timber is one involving an interest in lands where such timber is to remain standing for a fixed period of time, this is not the rule where the timber is to be cut and sawed into lumber without appreciable delay after the sale. See Graham v. West, 126 Ga. 624 ( 55 S.E. 931); Pope v. Barnett, 45 Ga. App. 59 ( 163 S.E. 517).
Under the facts it appears that with the exception of payment by the defendant to the plaintiff of the balance of $200 due for this timber, the amount sued for, this contract has been fully performed and executed by both parties thereto. The timber had been delivered and the plaintiff had been paid $100 of the purchase-price agreed on, and the defendant had cut and sold the timber and had moved his sawmill.
There was no error in the court's refusing the defendant's motion, made at the conclusion of the plaintiff's evidence, for a nonsuit. The plaintiff made a prima facie case to the effect that the defendant was due him $200 balance on the purchase-price of certain growing timber. There is no merit in the contention that the plaintiff's proof failed to show that the defendant owed him $200 on account and that the plaintiff's remedy, if any, would be to sue the defendant for the damages arising out of a breach of the contract by the defendant. The plaintiff sold the defendant the timber. The defendant accepted the timber, paying only a part of the purchase-price thereof. The plaintiff could properly sue the defendant for the $200 balance of the purchase-price.
There is nothing in the case of Pope v. Barnett, supra, and in Blue v. Ford, 12 Ga. 45, and other decisions referred to by the defendant to the contrary of the rulings made in the present case.
It follows from what has been stated above that the trial judge did not err in directing a verdict in favor of the plaintiff. Under the evidence a verdict for the plaintiff was the only verdict that would stand.
The trial judge did not err in overruling the defendant's motion for new trial, as amended.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.