Martin v. Grant , 49 Ga. App. 468 ( 1934 )

Broyles, C. J.

Grant foreclosed a laborer’s and mechanic’s lien against Martin, alleging that Martin owed him $695.72 “for labor and work done by deponent as a mechanic, repair man, laborer and helper” on described machinery, and that “deponent has a special lien npon said described property because of repairing same and working thereon as a mechanic, as well as a general lien npon all the property of the said T. L. Martin.” Martin filed a counter-affidavit and alleged therein: “1st. That he is not indebted to the plaintiff in the sum claimed or any part thereof, that he owes plaintiff nothing. 2d. That all statement of facts set out in plaintiff affidavit to foreclose said alleged lien are all untrue. 3d. That before said alleged foreclosure of said alleged and claimed' lien he paid to plaintiff in the city of Wrightsville, in said county, all he was due him, which payment and settlement was ih full and accepted by plaintiff in full of any and all claims and demands of every kind held by plaintiff against him.”

It appears from the charge of the court that defendant Martin assumed the burden of proving the payment of the debt and was granted the opening and conclusion of the case. The evidence for the defendant was solely upon the issue of payment, and no issue as to the existence of the liens claimed by Grant was raised by the evidence. Conceding (but not deciding) that the allegation in the counter-affidavit, “that all statement of facts set out in plaintiff affidavit to foreclose said lien are all untrue,” would have been sufficient to put upon plaintiff the burden of establishing by proof the existence of his alleged liens if the defendant had not voluntarily assumed the burden of proving his plea of payment, yet where he did assume that burden, and where, if any issue as to the existence of the liens was attempted to be made in the counter-affidavit, the evidence did not support the allegation thereof, no such issue was before the jury, and the judge properly so instructed the jury. See, in this connection, Martin v. Nichols, 127 Ga. 705 (2), 709 (56 S. E. 995). On conflicting evidence the jury returned a verdict for the plaintiff. The verdict was authorized by the evidence; and, under the foregoing rulings, none of the grounds of the motion for a new trial is meritorious.

Judgment affirmed.

MacIntyre, J., concurs. Querry, J., dissents.