Since any error in denying such a motion is cured if the defendant thereafter introduces evidence supplying the deficiency in the plaintiff's evidence, the evidence as a whole must be examined to determine whether the plaintiff had proved his case as laid at the time of the motion for nonsuit, and if not, whether later evidence supplied the deficiency. Atlantic Birmingham R. Co. v. Sumner, 134 Ga. 673 ( 68 S.E. 593); Rice v. Ware Harper, 3 Ga. App. 573 ( 60 S.E. 301); Ocean Steamship Co. v. McDuffie, 6 Ga. App. 671 ( 65 S.E. 703); Andrews v. Andrews, 91 Ga. App. 659, 660 ( 86 S.E.2d 669)."
Since any error in denying such a motion is cured if the defendant thereafter introduces evidence supplying the deficiency in the plaintiff's evidence, the evidence as a whole must be examined to determine whether the plaintiff had proved his case as laid at the time of the motion for nonsuit, and if not, whether later evidence supplied the deficiency. Atlantic Birmingham Ry. Co. v. Sumner, 134 Ga. 673 ( 68 S.E. 593); Rice v. Ware Harper, 3 Ga. App. 573 ( 60 S.E. 301); Ocean Steamship Co. v. McDuffie, 6 Ga. App. 671 ( 65 S.E. 703); Andrews v. Andrews, 91 Ga. App. 659, 660 ( 86 S.E.2d 669). 3. The testimony of the plaintiff was evasive and contradictory, and he refused to answer some of the questions on cross-examination. "When the testimony of the plaintiff himself is being considered, there will be borne in mind the rule that if a plaintiff fails to establish the material allegations of his petition, or if his testimony is contradictory and uncertain as to such allegations, the court, on motion to nonsuit, should construe the evidence most strongly against him, and may, if no other testimony appears, be authorized to grant a nonsuit."
5. As to the granting of a nonsuit, a judgment of the court will not be reversed for refusal to grant a nonsuit, even though at the time of the motion the plaintiff has failed to make out a case, if the trial proceeds to verdict and during its progress the necessary evidence is supplied by either party. Werner v. Footman, 54 Ga. 128; Andrews v. Andrews, 91 Ga. App. 659 (1) ( 86 S.E.2d 669). This rule was pointed out in Reserve Life Ins. Co. v. Gay, 99 Ga. App. 661, 670 ( 109 S.E.2d 919), although it did not at that time constitute a ruling on the point, which was not then before the court. The exception to the grant of a nonsuit cannot, under the circumstances here, be considered, since the trial resulted in a verdict for the plaintiff, and since even if the motion was good at the time it was made because of the failure of the plaintiff to introduce in evidence the policy of insurance, this deficiency was later supplied by the evidence.
21 C. J. S. 946, § 89; 67 C. J. S. 1073, § 83; 50 C. J. S. 360, § 811, et seq. Tennessee being a part of the original thirteen colonies, it is presumed in the absence of anything to the contrary that the common law of that State is the same as the common law of this State as interpreted by Georgia courts. Andrews v. Andrews, 91 Ga. App. 659 (3b) ( 86 S.E.2d 669). Accordingly, the defendant, knowing that the judgments of the State of Tennessee would be entitled to full faith and credit in this State, should, if after notice it desired to avoid the effect of such judgment upon itself, have intervened in the Tennessee case to defend the title of its vendee. Of course, if under any statutory requirement peculiar to Tennessee law it would have been prevented from intervening and making its defense therein, such fact might be pleaded and proved by it in this action in order to avoid the effect of the Tennessee judgment in this State, and would be matter of defense, in which event the petition here would still state a cause of action against the defendant for a breach of warranty of title, but the plaintiff, instead of standing upon the judgment in the Tennessee case, would have to prove every fact alleged by him relating to his right to recover and the amount of his damages.