Morris v. Winn , 98 Ga. 482 ( 1896 )

Lumpkin, Justice.

This case was before this court at the March term, 1894. It appears that "Winn bought a mule from Morris and Oath-cart, in Atlanta, paid them for it $70, and also $1.80 more to deliver the mule at Watson’s stable, in Douglasville, which they agreed to do. The mule was never delivered at that stable; but at another in the same town, where it died without ever have been received by Winn. He brought his action against the sellers for the money paid. A verdict was rendered in their favor, and this court reversed the judgment of the trial court denying the plaintiff a new trial. 94 Ga. 452. The official report there appearing does not fully set forth the evidence, but the record then before us showed plainly and unequivocally that the contract between Winn and Morris and Cathcart embraced as a part thereof an express stipulation for the delivery of the mule at Watson’s stable in Douglasville, and that this was a vital and essential feature of that contract. With that evidence before the court, we held, in effect, that the sellers ought to have been adjudged liable to the purchaser for the breach of their contract.

The case was tried again, and the judge below directed a verdict for the plaintiff. Had the evidence been the same as on the former trial, this action by the judge would have been sustained; but the evidence introduced upon the last trial, and which comes up to us in the present record, is essentially different from that offered at the first trial. In tbe brief of evidence now before us, there was evidence for the defense which (if true) tended to show that the contract of sale was complete and the mule was actually delivered to Winn in Atlanta, and that this complete and distinct contract was followed, by a supplemental agreement on tbe part of Morris and Cathcart to send the mule, for Winn, to Douglasville. There was also evidence in behalf of Winn tending to prove what we have already stated unequivocally appeared at the first, trial.

We do not, of course, undertake to say what the real truth of the matter is; but we feel sure it was not a case for the direction of a verdict, and should have been submitted to the jury for determination. Judgment reversed.