Opinion
40018.
DECIDED MAY 15, 1963.
Foreclosure, etc. Coffee Superior Court. Before Judge Hodges.
McDonald, McDonald Mills, J. C. McDonald, for plaintiff in error.
M. L. Preston, G. H. Mingledorff, contra.
1. The admission of testimony of witnesses, as to payment being made on an indebtedness by a cashier's check in a certain amount, over an objection made on the grounds that the check itself would be the highest and best evidence, if error, is harmless where the same witness and other witnesses testified to the same effect without objection. Cox v. State, 64 Ga. 374 (9) (37 AR 76); Simmons v. State, 34 Ga. App. 163 (1) ( 128 S.E. 690); Elders v. Griner, 40 Ga. App. 649 (2) ( 150 S.E. 857); Camp v. State, 41 Ga. App. 459 (1) ( 153 S.E. 382).
2. Where evidence is offered by both parties, and admitted without objection even though such evidence may not be authorized by the pleadings, and the issue made by such evidence becomes the primary and controlling issue in the case, it is not error for the trial judge to charge the jury upon such issue. See Simpson Grocery Co. v. Holley, 51 Ga. App. 355 (3) ( 180 S.E. 501), and the following cases cited therein: Haiman v. Moses, 39 Ga. 708 (3); Field v. Martin, 49 Ga. 268 (3); Howard v. Barrett, 52 Ga. 15 (2); Artope v. Goodall, 53 Ga. 318, 323 (5); Central R. c. Co. v. Attaway, 90 Ga. 656, 659 ( 16 S.E. 956), and cit; Howard v. Georgia R. Power Co., 35 Ga. App. 273 (6) ( 133 S.E. 57). Cf. Western A. R. Co. v. Sellers, 15 Ga. App. 369 ( 83 S.E. 445).
3. Where, under the pleading and the evidence, a plaintiff, if entitled to recover at all, is entitled to recover the full amount sued for, but no lesser sum, a charge given by the court to the jury is not objectionable, insofar as the plaintiff is concerned, because it does not permit the recovery of a lesser amount.
4. Even though a portion of the charge of the court excepted to may not be as clear and precise as could be desired, if the charge as a whole substantially presents the issues to the jury in such a way as not likely to confuse the jury, this court will not disturb a verdict amply authorized by the evidence.
5. The evidence sustains the verdict.
6. Applying the above rulings to the grounds of the motion for new trial and the amendment thereto, it does not appear that the trial judge erred in overruling the same for any reason assigned.
Judgment affirmed. Bell and Hall, JJ., concur.
DECIDED MAY 15, 1963.
A note in the principal amount of $3,000, with a bill of sale to secure debt as a part thereof, dated October 13, 1956, due October 13, 1962, signed by C. L. Fellows and payable to Tom T. Fellows, was, on March 1, 1957, transferred by Tom T. Fellows to W. C. Todd, said transfer being as follows: "For value received, and, to better secure my note, and one security deed with power of sale in the amount of $1,113.22 of this date, I hereby transfer to W. C. Todd all my rights, equities and values with the same power that is vested in to me to one bill of sale note from C. L. Fellows to me, as the interest of W. C. Todd may appear from time to time, being the within bill of sale note hereto written on the reverse side." In June, 1961, W. C. Todd brought a statutory foreclosure proceeding alleging grounds of attachment in his affidavit of foreclosure, and C. L. Fellows filed his affidavit of illegality thereto setting up the following grounds: "1. That dependent is not indebted to the said W. C. Todd under said note and bill of sale to secure debt in the amount alleged in his affidavit of foreclosure nor in any other amount. 2. That dependent is not fraudulently disposing of said property as alleged in affidavit of foreclosure of the said W. C. Todd. 3. Deponent denies each and every allegation contained in the affidavit of foreclosure."
Upon the trial the defendants (both C. L. Fellows and Tom T. Fellows are named defendants in error, but the record does not disclose how Tom T. Fellows became a party) admitted a prima facie case and assumed the burden of proof. W. C. Todd testified that the bill of sale note was transferred to him to secure other debts (than the one recited in the transfer) which Tom T. Fellows owed him at the time of the transfer and still owes him in the amount of $25,000 to $28,000. Tom T. Fellows denied that the transfer was given to secure any other debt than that recited in the transfer, and denied that he owed W. C. Todd anything. The evidence was uncontradicted that after the transfer and after the debt referred to in the transfer had been paid C. L. Fellows paid the entire amount of the transferred bill of sale note to Tom T. Fellows, part of which was represented by a cashier's check in the amount of $2,500 purchased by C. L. Fellows and paid on a debt of Tom T. Fellows to a third party for which debt C. L. Fellows was guarantor. So far as the record discloses there were no demurrers or motions to strike the affidavit of illegality in whole or in part, nor were there any objections to any of the evidence except as disclosed in the head notes. The jury returned a verdict for the defendants, the plaintiff's motion for new trial was overruled by the trial judge and is now before this court for review on exceptions thereto. The grounds of the motion for new trial, other than the general grounds, relate to alleged erroneous admission of testimony (as more fully appear in the headnotes), and to the charge of the court relating to the assumption of the burden of proof by defendant and the issue of whether the assignment of the bill of sale note was to secure only the indebtedness described in the transfer, which plaintiff admitted had been paid, or was to secure additional indebtedness owed by Tom T. Fellows to plaintiff.