Neiman-Marcus v. Gammage, NEIMAN-MARCUS
| Decision Date | 09 May 1989 |
| Docket Number | No. A89A0885,NEIMAN-MARCUS,A89A0885 |
| Citation | 382 S.E.2d 208,191 Ga.App. 510 |
| Parties | v. GAMMAGE. |
| Court | Georgia Court of Appeals |
Jones, Morrison & Womack, Lewis N. Jones, Atlanta, for appellant.
Gammon & Anderson, Joseph N. Anderson, Sara Nell Langland, Cedartown, for appellee.
Plaintiff Neiman-Marcus filed this action on an account against defendant Gammage. Plaintiff sought a judgment in excess of $10,000 based on the initial purchase price for a fur coat of $8,925, plus interest on the account.
The sale of the fur coat on approval was acknowledged by both parties. The defendant presented evidence that, beginning soon after the sale, he had repeatedly attempted to return to plaintiff the fur coat in the same condition as when he had received it, but that plaintiff had refused to take the coat back. A demand for payment and refusal were also established. The jury was presented with the issue of whether any valid offer of return was timely and reasonably made, and instructed as to two possible verdicts.
The jury returned a verdict in favor of plaintiff in the amount of $4,000 principal and one dollar interest. Whereupon, following a bench conference with counsel, the trial court instructed the jury that Following the reinstruction the jury resumed their deliberations and subsequently returned a verdict in favor of defendant.
Plaintiff appeals from the judgment in favor of defendant. In its sole enumeration of error, plaintiff contends the trial court erred in refusing to enter judgment upon the verdict initially published by the jury which found in favor of plaintiff. Held:
A party cannot ignore during trial that which he considers to be an injustice during trial of the case in hopes of obtaining a favorable verdict and then enumerate that alleged injustice as error on appeal when the verdict proves to be adverse to him. Kelley v. Austell Bldg. Supply, 164 Ga.App. 322, 323(1) 324, 297 S.E.2d 292; Simmons v. Edge, 155 Ga.App. 6, 7(2), 8, 270 S.E.2d 457; Long County Bd. of Education v. Owen, 150 Ga.App. 245, 247(1), 257 S.E.2d 212. Since the issue plaintiff now enumerates as error was raised for the first time on motion for new trial, nothing is presented for review by ...
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