Opinion
46240.
SUBMITTED MAY 10, 1971.
DECIDED SEPTEMBER 9, 1971.
Action on account. Irwin Superior Court. Before Judge Gray.
McDonald, Mills Chasteen, Ben B. Mills, Jr. for appellant.
Reinhardt, Ireland, Whitley Sims, Glenn Whitley, for appellee.
Plaintiff in a suit on open account seeking to recover $1,678 appeals from the judgment based on a verdict for $500.
The difference in amount approximately represents the only controversial item in the account, a machine called a peanut shaker. The defendant pleaded and introduced testimony on total failure of consideration and breach of implied warranty, i.e., the machine was totally worthless for the intended purpose of shaking peanut plants since it jammed up constantly and also stripped many plants.
1. The court did not err in allowing defendant and his son to testify concerning the value of the machine. Not only was there a sufficient basis shown for this opinion evidence under Code § 38-1709, but plaintiff did not object on that ground at the time of the ruling. Brown v. State, 115 Ga. App. 813 ( 156 S.E.2d 180).
2. Similarly, the enumerations concerning two parts of the court's charge are without merit. Neither was objected to at the time on the ground which plaintiff argues on appeal. Black v. Aultman, 120 Ga. App. 826 ( 172 S.E.2d 336); John Deere Co. v. Lindsey Landclearing Co., 122 Ga. App. 827 ( 178 S.E.2d 917).
3. Nor will we consider any question of estoppel based on failure to return the machine since the issue was not raised in the trial court in any form which called for a ruling that might be error. There is nothing from which to appeal.
4. The evidence did not demand a verdict for plaintiff in the full amount. There was sufficient evidence to support the actual verdict.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.