Seaboard Lumber Co. v. Cornelia Planing Mill Co.

There was no substantial variance between the allegata and the probata. The car of lumber was sufficiently identified. There was no error of law. The evidence sustained the verdict, and the judgment refusing a new trial is affirmed.

Action on contract. Before Judge Reid. City court of Atlanta. June 2, 1904. The Cornelia Planing Mill Company brought an action against the Seaboard Lumber Company, alleging that the plaintiff had purchased from the defendant a car-load of No. 1 common lumber to be delivered at Cornelia, Georgia. Collection was by draft with bill of lading attached, and payment was made before the lumber was inspected. Upon delivery it was found to be of inferior quality. The plaintiff sued for the difference in value between that ordered afld that received. The jury found for the plaintiff, and the defendant made a motion for a new trial, on the general grounds, and on the ground that the proof failed to establish the allegation of the petition that the plaintiff notified the defendant to take back the lumber in question, stating that if this was not done, the plaintiff would sell it at the defendant’s risk. Error was assigned also on the admission of the testimony of a witness identifying the car.