Robinson & Eason v. Register , 21 Ga. App. 614 ( 1918 )

Jenkins, J.

This was an action for the contract price of cross-ties cut by the defendants from the plaintiff’s land. 'One bf the defenses to the suit was that the defendants were entitled to a credit in the amount of certain merchandise and cash furnished .by them, upon the verbal order of the plaintiff and his original undertaking, to one J. J. Bennett, after June 22, 1914. The court charged the jury as follows: “The next question is, whether or not a certain account made by Mr. Bennett ghould be allowed a credit by these defendants upon these ties. The burden of proof is upon the .defendants to establish that. Seems not to have been Mr. Register’s debt, but the debt of another, and the burden is upon the defendants to establish by a preponderance of the testimony the liability of Mr. Register upon that account. If you find that he is liable for this account, the same should be credited by these defendants. You have heard the testimony about this, and it is for you to say.” A verdict was returned in favor of the plaintiff. Held, that the charge as quoted above amounted to an expression of opinion by the court that the account was made by Bennett, aiid not by the plaintiff as an original undertaking on his part, as contended by the defendants; and this question being an issue between the plaintiff and the defendants, it was error for the court, in its charge, to assume that the account was “made by Bennett,” and that it “seems not to have been Mr. Register’s debt, but the debt of another,” the question at issue being, not whether Register had made himself legally “liable” for Bennett’s debt, which under the statute of frauds could only be done in writing, but whether or not the merchandise and cash had been furnished to Register upon his own credit, as. an original undertaking, as claimed by defendants.

Decided January 22, 1918.

Complaint; from city court of Valdosta — Judge Cranford. March 30, 1917.

Franklin & Langdale, for plaintiffs in error. Patterson & Gopeland, contra.

Judgment reversed.

Wade, 0. J., and Luke, J., concur.