Opinion
27952.
DECIDED MARCH 9, 1940.
Trover; from Marion superior court — Judge McLaughlin. July 19, 1939.
Joseph M. Rogers, R. S. Wimberly, for plaintiff.
T. B. Rainey, for defendant.
The court erred in submitting to the jury an issue which had not been raised by the pleading or the evidence.
DECIDED MARCH 9, 1940.
The plaintiff lumber company brought an action in trover against McAllister, to recover the value of certain timber belonging to the plaintiff and alleged to have been cut and sold by the defendant. A verdict for the defendant was returned, and the plaintiff's motion for new trial was overruled. One ground of the motion assigns as error the following excerpt from the charge of the court: "If you should find for the plaintiff in any sum whatever, the defendant is entitled to a credit there of $120. In other words, it is admitted by all parties that $120 was paid for certain wood found at a certain station in this county. Now as to whether or not that was in full settlement is for you to determine." The court erred in submitting to the jury the issue as to whether the payment of the $120 was in full settlement for all of the plaintiff's timber alleged to have been cut by the defendant, such an issue not having been raised by the pleading or the evidence. This error requires another hearing of the case.
Judgment reversed. MacIntyre and Guerry, JJ., concur.