Waynesboro Planing Mill v. Barrow , 33 Ga. App. 26 ( 1924 )

Luke, J.

1. Where the operator of a sawmill contracted to manufacture into lumber all the timber on a designated tract of land, and to sell the lumber at a stipulated price per thousand feet, the sum to be paid became fixed and certain when the lumber was so manufactured and measured; and, in the absence of stipulations to the contrary, the purchaser simultaneously became bound and liable to pay that sum. In a suit by the operator against the purchaser, to recover the purchase price or a part thereof, the plaintiff is entitled to recover interest at the rate of seven per centum per annum from the date on which his demand was so liquidated. Civil Code (1910), § 3434; Council v. Hixon, 11 Ga. App. 813 (4) (76 S. E. 603), and cases cited.

2. The charge of the court was sufficiently full and fair, and was not subject to any of the criticisms urged against it.

3. The verdict was in favor of the plaintiff for the principal sum sued for, with interest thereon at the rate of seven per centum per annum from September 22, 1922. Under the plaintiff’s own testimony, his demand did not become liquidated until “about the first or middle of December,” 1922. Consequently he was not entitled to recover interest for any period prior to December 15, 1922. -The record here discloses no other error.

{a) If the plaintiff below (defendant in error here) will voluntarily write off the excessive interest by the time the remittitur is made the judgment of the lower court, the judgment overruling the motion for a new trial shall stand affirmed; otherwise the judgment is reversed.

Judgment affirmed on condition.

Broyles, C. J., and Bloodworth, J., concur.