Wisenbaker & Co. v. West Yellow Pine Co. , 16 Ga. App. 699 ( 1915 )

Wade, J.

1. The verdict was sufficiently supported by the evidence.

. 2. The court construes a written contract, but where the purpose for which the instrument was executed is properly at issue, the question must be submitted to the jury.

3. Where no fraud or deception was claimed or shown, it was not harmful error for the court to instruct the jury that “in the absence of fraud or deception,” a written agreement controls, “but if the writing be ambiguous, it may be explained by parol testimony.”

4. The entry of the levying officer did not show in whom the possession of the property was at the time of the levy. The court charged the jury that “after showing possession, if the same has been done, in the defendant in fi. fa., that would cast the burden upon the claimants to show the property was not the property of the defendant in fi. fa., but is the property of the claimants.” The court, however, correctly ruled that the plaintiff in fi. fa. should have the opening and concluding arguments before the jury. The general burden in the case was upon the plaintiff in fi. fa., and whether or not that burden had been shifted to the claimants, by proof showing possession of the property by the defendant in fi. fa. at the time of the levy, was strictly a question of fact, which the court could not determine by charging the jury that the burden had been shifted to the claimants by the proof.

5. After the close of the evidence and before the charge to the jury, the claimants offered to admit the possession of the property by the defendant in fi. fa. at the time of the levy, for the sole purpose of obtaining the opening and concluding arguments before the jury. The proposed amendment amounted only to an admission by the claimants against their interest, and there was no harmful error in refusing to allow the amendment; nor did the court err thereafter in declining to allow the claimants to open and conclude the argument.

6. The only special exceptions are practically covered by the foregoing rulings, and the court did not err in overruling the motion for a new trial. Judgment affirmed.