Head v. Pollard Lumber Sales, Inc.
| Decision Date | 19 September 1953 |
| Docket Number | No. 2,No. 34819,34819,2 |
| Parties | HEAD v. POLLARD LUMBER SALES, Inc |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A description of lumber in a bailtrover proceeding which sets out the kind of wood, the number and size of pieces with the board feet in each size, the location of the lumber and places to which it was transported on a named date, being sufficient to differentiate the lot of lumber sued for from all other lots of lumber, sufficiently identifies it, and is not demurrable.
2. Where the court, in a colloquy with counsel, makes remarks which are prejudicial or intimate an opinion upon the merits of the case, proper objection, or a motion for mistrial, should be made at the time of the occurrence. In the absence of such objection, error cannot be assigned thereon for the first time in a motion for new trial.
3, 4. There was no error in admitting the evidence objected to as set out in the corresponding divisions of this opinion.
5. The evidence authorized the verdict finding title and right of possession of the property involved in this trover action to be in the plaintiff.
Pollard Lumber Sales, Inc. filed a statutory bail-trover proceedings in the City Court of Hall County against W. R. Head to recover 6,000 board feet of pine and poplar lumber. The description of the property, as twice amended, set out the number of pieces each of pine and poplar lumber, together with the size and number of board feet in each category, and further described it as follows: 'said 6,000 board feet of pine and popular lumber was located on Fred O'Kelley's land, Hall County Georgia, in Quillian's District on September 18, 1952, to which your petitioner claims title * * * being the same lumber transported and carried to Chambers Lumber Co., Gainesville, Georgia, on September 18, 1952, and other to Gainesville Co-op Factory, Gainesville, Georgia, and Atlanta Oak Flooring, Baldwin, Georgia.' The demurrers, which were renewed to the petition as amended, and which are here insisted upon by the plaintiff in error, are that the petition fails to set forth a cause of action and is insufficient to support a recovery of the property sued for, and that the description of the property is too vague, indefinite, and uncertain. The demurrers were overruled and exceptions pendente lite preserved.
Upon the trial of the case the undisputed evidence was that the defendant informed the plaintiff where a tract of pine and poplar timber could be purchased for $4,250, and the parties thereupon agreed that the plaintiff would put up the money and take title in its name; that the defendant would have the timber cut and hauled; and that, after the plaintiff had received a sufficient amount of lumber to repay the purchase price and expenses of drawing up a contract the entire profit would belong to the defendant. The evidence was disputed, however, as to whether, after the purchase price had been repaid, the defendant was to sell the remainder to the plaintiff or whether he might dispose of it elsewhere. The plaintiff employed a man to do the hauling and charged the price of hauling against the defendant. This witness testified that the plaintiff had instructed him to keep track of the logs brought in and cut from the O'Kelley place; that on his last trip he estimated there were approximately 3,000 feet of pine and 3,000 feet of poplar lumber remaining, and that when he returned this was being loaded on another truck and taken elsewhere. The defendant admitted selling 1,200 feet of lumber to another concern, but contended that he had delivered to the plaintiff that sufficient lumber to reimburse him for the purchase price of the tract of timber, and that the remaining lumber belonged to him.
The jury returned a verdict for the plaintiff in the amount of $250, the sum sued for. The defendant filed a motion for new trial on the general grounds, which was later amended by adding certain special grounds, and the denial of this motion is assigned as error.
Brannon & Brannon, Gainesville, for plaintiff in error.
I. O. Perry, Gainesville, for defendant in error.
1. It was held in Crews v. Roberson, 62 Ga.App. 855, 856(1, 2), 10 S.E.2d 114, that a trover action in the statutory or short, form, as set out in Ga.L.1847, p. 203, sec. 2, is sufficient as against general demurrer; and that, as to description of the property, while an article described as 'one horse' would be insufficient, an article described as 'one horse bought from a named person' would be sufficient, or a description reading 'about 650 sticks of flue-cured tobacco, same being in weight 800 pounds of cured tobacco of the value of $240, said described tobacco being part of the same that was planted, grown, gathered, and cured by W. L. Crews as a sharecropper of I. J. Roberson on said I. J. Roberson's farm in Wayne County, Georgia, during the year 1939.' In Stipe v. Willingham, 38 Ga.App. 244, 143 S.E. 614,...
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