Williams v. Paul F. Beich Company , 74 Ga. App. 429 ( 1946 )

The defendant ordered and received certain candies, testified that they were not reasonably suited to the use intended, and introduced in evidence a box of the candy and some loose sticks of the same. The jury returned a verdict for the plaintiff. Held:

1. The jury's finding was not based on a mere surmise or conjecture, but was based on an inference resting upon a premise of an observed fact as to the condition of the sample of the candy which they examined and tested.

2. There was evidence which authorized the verdict.

DECIDED OCTOBER 22, 1946. This was a suit on an open account. The petition had attached thereto an itemized, sworn statement of account, which consisted of certain candies. The entire evidence in the case was as follows:

The defendant, J. T. Williams Jr., offered as a witness for the plaintiff, testified on direct examination: "I ordered and received the merchandise described in the petition. I have it now in my place of business on Wheeler Street in Americus, Georgia. I sold a few boxes right after the candy arrived, but they were returned to my [me] by my customers and I had to refund their money as they claimed the candy was no good. This happened within thirty days after I received the candy. The candy all consisted of suckers, a hard candy, but soon after it arrived it became syrupy and the colors ran together." (On cross-examination) "I am the owner of the Americus Bottling Company. I also handle candies, wholesale, in connection with the soft-drink business. I have had about ten-years' experience handling candies as a wholesaler. I have had a great deal of experience in the handling and the taking proper care of candy and know how to take proper care of candy, how it should [be] stored and the proper sort of place in which it should be kept as to temperature and other things. This candy is wholly worthless and useless. I bought it for the purpose of resale to my customers, which fact was known to the plaintiff. It was worthless for that purpose or any other purpose. It is unwholesome. Within a few days after it arrived it began to get syrupy, and the colors to run together. It broke down. It is a kind of candy known as suckers and was bought as such, and as such should last indefinitely, as much as four years, should not break down within that time, but should remain hard and firm and the colors should not run together. This candy ran together and became unsalable due to fermentation or to improper manufacture. I promptly notified the plaintiff of the condition of the candy and offered to return it. In about thirty days after I received the candy the plaintiff's traveling salesman called on me to collect. I showed him the candy and offered it to him and asked for shipping instructions and explained it was unsalable and worthless. He said I should have sold it out right quick and gotten rid of it. I told him that would ruin my trade. I have all of said candy on hand now, as what little I sold I had to take back and I offer it back to the plaintiff." (On redirect examination) "I did not put this candy on a stove. None of it ran on my desk. The candy which I took up I put back with the other candy. I have kept this candy in the candy room where I keep my other candy. I have never seen any run like this before. My other candy keeps all right in this candy room and the other candies are mostly chocolate, while this is a taffy."

The defendant introduced in evidence a box of the candy and some loose sticks of same, which was the subject-matter of the suit, and same was taken out by the jury to the jury room on their retirement.

The jury found a verdict in favor of the plaintiff. The sole exception here is that the evidence did not authorize the verdict. The evidence showed that the defendant ordered and received the merchandise, "candies," described in the petition. This made out a prima facie case for the plaintiff. The defendant contended in his answer that the consideration had failed, in that the said consideration was merchandise which by implication of law was warranted as suitable for the use intended, and that the candy was not thus suited to such use.

The defendant testified that the candy was not reasonably suited for the purposes for which it was intended; and contends that such testimony was positive and uncontradicted, that it was unimpeached, and that it established his defense. The rule, that "A defense established by the positive and uncontradicted testimony of unimpeached witnesses can not lawfully be arbitrarily disregarded," is a sound proposition of law. "The jury can not arbitrarily disregard the evidence of any witness, which is not contradicted or discredited by other evidence or circumstances. The jury should regard the testimony of every witness sworn. They are not obliged to believe it, but it is their duty to give to the evidence of witnesses the weight to which, in their opinion as conscientious men seeking after the truth, they believe it is entitled." In considering the testimony of a witness, the jury may take into consideration his appearance or his demeanor or his manner upon the stand, but the mere fact that he is the defendant and interested in the result of the outcome of the case affords no reason why his evidence should arbitrarily or without reason be disregarded. Haverty Furniture Co. v. Calhoun, 15 Ga. App. 620, 621 (84 S.E. 138); Lankford v. Holton, 187 Ga. 94, 102 (200 S.E. 243);New York Life Insurance Co. v. Jennings, 61 Ga. App. 557,564 (6 S.E.2d 431). It is often difficult to decide when a witness is in a legal sense uncontradicted. "He may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statement of a witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached." Goldwire v. State, 56 Ga. App. 379 (192 S.E. 643). The jury is not bound "in every case to accept the literal statements of a witness before it merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto." Cooper v. Lumbermen's MutualCasualty Co., 179 Ga. 256, 261 (175 S.E. 577). However, it must be noted in the instant case that the defendant introduced in evidence some of the candy, which the jury carried out to the jury room. While it is correct that the defendant did testify positively that the candy was not suited to the use intended, yet he introduced in evidence a box of the candy in question and some of the loose sticks of such candy. It seems to us that the jury had the right to consider the candy introduced as a sample of the candy sold, and to find that all of the other candy sold was of the same kind and quality as that introduced in evidence; and from the inspection of the candy thus introduced and examined by them, they were authorized to find that the candy was reasonably suited for the use for which it was intended.

We can not say that the finding of the jury was based on a mere surmise or conjecture and not upon an inference resting upon a premise of fact; such premise of fact being an observed condition of the sample of the candy in question which they examined and tested. The jury could, if they saw fit, have drawn a conclusion based upon reason that the candy was suited for the use intended or, in other words, they were authorized to infer or find that it was a reasonable deduction from the evidence that the candy was reasonably suited for the use intended. We are constrained to hold that the evidence authorized the verdict. Wilson v. Barnard, 10 Ga. App. 98 (8) (72 S.E. 943).

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.