Cheeves v. Ayers

• Decision Date: 15 June 1931
• Docket Number: No. 21048.,21048.
• Citation: 43 Ga.App. 454,159 S.E. 299
• Parties: CHEEVES. v. AYERS.
• Court: Georgia Court of Appeals

43 Ga.App. 454

159 S.E. 299

CHEEVES.

v.AYERS.

No. 21048.

Court of Appeals of Georgia,

Division No. 2

June 15, 1931.

Syllabus by the Court.

This was a suit to recover the value of cotton alleged to have been placed on deposit with the defendant and another, under an agreement that the depositaries would pay the plaintiff the market value of the cotton on call. There being no evidence to establish the call as alleged in the petition, and proof of this fact being essential to a recovery, the verdict for the defendant was demanded as a matter of law.

Syllabus by the Court.

None of the errors complained of in the amendment to the motion for a new trial could have changed the result, and the court therefore did not err in refusing the motion.

Error from City Court of Carrollton; J. J. Reese, Judge.

Action by I. P. Cheeves against A. Ayers. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff brings error.

Affirmed.

Boykin & Boykin, of Carrollton, for plaintiff in error.

Smith & Millican, of Carrollton, for defendant in error.

BELL, J.

In the instant case, the plaintiff, I. F. Cheeves, alleged that on February 22, 1924, he "deposited with J. H. Pope, who is now dead, and A. Ayers nine bales of cotton, " weighing 4, 174 pounds, under an agreement that the depositaries would pay the plaintiff the value of the cotton "on call." The suit was brought against Ayers alone, to recover $831.86, alleged to be the value of the cotton on January 13, 1930, the date when the plaintiff claims to have called on Ayers for payment. The defendant denied the allegations of the petition, and further pleaded that he was "never in partnership with J. H. Pope, and that plaintiff never at any time placed any cotton with J. H. Pope and this defendant on call; that the cotton sued for, to wit 9 bales totaling 4174 pounds of cotton, was never placed on call with defendant and J. H. Pope, and this defendant is not indebted to plaintiff in the manner and form set out or in any manner and form whatsoever, and that he does not owe plaintiff anything."

The trial resulted in a verdict for the defendant, and the plaintiff excepted to the overruling of his motion for a new trial as amended. In the amendment to the motion, error is assigned on two extracts from the charge of the court, and also upon the overruling of the plaintiff's objections to certain testimony.

Counsel for the plaintiff in error argue the general grounds of the motion for new trial, and contend that a verdict for the plaintiff was absolutely demanded by the evidence, and that the court, therefore, should have granted a new trial irrespective of the errors alleged to have been committed during the trial, although the special grounds of the motion are also earnestly insisted upon. After a careful consideration of the record, we have reached the conclusion that, on the contrary, the evidence demanded the verdict for the defendant as returned, and that the errors specially complained of, even if committed as claimed, could not have changed the result.

Assuming that the evidence established as a matter of law that the contract was made and entered into by the defendant as alleged in the petition, we think it was necessary for the plaintiff to prove the alleged call, and that the evidence was legally insufficient for this purpose. The only evidence upon this point was a letter purporting to have been written by the plaintiff's attorneys to the defendant and others, on January 13, 1930. This letter was admitted in evidence without objection, but there was no proof that it was addressed, stamped, and mailed, and, under repeated adjudications, evidence that a letter was written to a given person is insufficient to authorize an inference that he received it, unless the evidence shows also that it was properly addressed, duly stamped, and mailed. National Bldg. Association v. Quin, 120 Ga. 358 (3), 47 S. E. 962; Bankers' Mutual Casualty Co. v. People's Bank, 127 Ga. 326 (2), 56 S. E. 429; Rawleigh Medical Co. v. Burney, 22 Ga. App. 492 (1), 96 S. E. 578; Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (1), 102 S. E. 358; National...