Opinion
32601.
DECIDED SEPTEMBER 10, 1949.
Complaint; from Fulton Civil Court — Judge Etheridge. April 22, 1949.
Harold Sheats, for plaintiff in error.
John R. Burress, contra.
1. This is an action on open account to recover the purchase-price of a Beech 10 H. P. Rip Saw and starter. The defendant answered and sought to recoup damages by reason of an alleged breach of warranty that the machine would rip lumber up to four inches in thickness. While the evidence for the plaintiff was based on opinion, under the facts it was sufficient to create a conflict in the evidence, and the court, trying the case without a jury, was authorized to find in favor of the plaintiff.
2. The same strictness as to the admission of evidence is not required when a case is by agreement tried by a judge without a jury. Ward v. State, 26 Ga. App. 61 ( 105 S.E. 373). The admission of the evidence complained of here, in our opinion, does not show such harmful error as to require a new trial.
DECIDED SEPTEMBER 10, 1949.
The evidence for the defendant tended to show that the warranty was breached and would have authorized such a finding. One of the plaintiffs testified in effect, that the machine would rip lumber up to 4 inches in thickness, that he offered to show the defendant how to operate it so that it would do so, and that the defendant refused to permit him to demonstrate or to fix the machine so it would properly perform. This was sufficient to make a question of fact for the court to decide. The first ground of the amended motion complains of the admission of testimony of one of the plaintiffs as follows: "I have been selling that kind of machine for 25 years and seen it in operation constantly. . . In Fulton County at least a dozen of these machines are operating." The second ground complains of similar testimony of another witness to the effect that he operated a similar machine without difficulty.
The headnotes require no further discussion.
The other grounds of the motion are without merit, and the court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.