Opinion
34891.
DECIDED JANUARY 14, 1954.
Action on note. Before Judge Adams. Habersham City Court. July 28, 1953.
R. C. Scott, for plaintiff in error.
Kimzey Kimzey, Hamilton Kimzey, Herbert B. Kimzey, contra.
1. The court did not err in allowing the defendant to have the opening and conclusion of the argument before the jury, where the defendant had admitted a prima facie case and assumed the burden of proof without objection by the plaintiff.
2. The court did not fail to charge the law applicable to the case with respect to the burden of proof.
3. There was no fatal variance between the allegations of the defendant's plea of payment and the proof offered in support thereof, the verdict was authorized by the evidence, and the court did not err in denying the motion for new trial.
DECIDED JANUARY 14, 1954.
S. L. Mills sued L. R. Jones for $500, with interest, alleged to be due on a note for $1,200, payable in twenty-four installments of $50 each, beginning on January 3, 1950, and on the third day of each month following until paid. The defendant was credited with ten payments of $50 each from January to October 1950, and with a payment of $200 on May 31, 1951, leaving the amount sued for, $500.
The defendant answered, denying the material allegations of the petition, and further alleged that, on or about January 3, 1950, he paid S. L. Mills $100 to be credited on said note, and also made payments of $100 to Mills on or about the dates of February 2, March 3, April 3, May 2, June 2, and July 3, 1950; that the other credits appearing on the copy of the note attached to the petition were correct.
The case proceeded to trial, and after reading the pleadings to the court and jury, counsel for the defendant admitted the execution and delivery of the note sued on and that the plaintiff was the holder thereof, and he announced that the defendant assumed the burden of proof. The defendant, L. R. Jones, testified: Beginning on January 3, 1950, and on the second or third days of February, March, April, May, June, July, August and October, he paid $50 per month on the note. He had stated to Mills when the note was executed that he would like to pay $50 per month, but that, if at any time he felt able to make it up, he wanted to pay it up in twelve instead of twenty-four months. In March of 1950, Jones closed the cafe or soda shop which he had been operating, sold the soda fountain for $2,000, and paid $200 in cash in April, thereby making total payments of $400 for the first four months of 1950. Jones sold the rest of the cafe equipment in August, 1950, and in that month paid Mills $100 in addition to the $50 payment on the note at the beginning of August. He also had gotten behind on one of the payments and paid $100 in the middle of the month, about September 15, although he could have been wrong about the month. These payments, which were made in cash and were not shown on the note, amounted to $350, and the receipts for these payments were burned in a fire which destroyed all of the defendant's records and damaged the hotel which he was operating.
The plaintiff denied having received $200 in April, $100 in August, and $50 in September of 1950, in addition to the monthly payments of $50 for which credit had been given.
The jury returned a verdict for the plaintiff for $150, with interest, and the plaintiff's motion for new trial was denied, to which judgment he excepts.
1. The first special ground of the motion for new trial shows that the defendant admitted a prima facie case and then assumed the burden of proof; and error is assigned on the court's allowing the defendant to have the opening and conclusion of the argument before the jury. It does not appear that the plaintiff made any objection or asked for any ruling of the court when the defendant undertook to assume the burden of proof, and the plaintiff thereby waived the right to open and conclude the argument. Zachry v. Stewart, 67 Ga. 218 (1); Dwelle v. Blackwood, 106 Ga. 486 (2) ( 32 S.E. 593); Willingham v. Macon B. Ry. Co., 113 Ga. 374 ( 38 S.E. 843). The ground does not show that the plaintiff claimed the right to open and conclude the argument until after the trial, and it was then too late. This ground fails to show error.
2. In the second special ground, the plaintiff complains of the court's failure to charge, without request, that to sustain the plea of payment, the burden was on the defendant to prove the time, place, amount, and to whom the alleged payments were made. Under the pleadings, the only issue was the amount of the payments, and the court so instructed the jury. As was held in Fletcher v. Young, 10 Ga. App. 183, 189 (3) ( 73 S.E. 38), "It is the fact of payment, and not the time or place of the payment, that is the essential fact to be proved; and if the evidence established the fact of payment, it is wholly immaterial that it did not go further and prove the place and time when the payment was actually made." Furthermore, there was no demurrer to the plea, seeking to require the defendant to allege the place where the payments were made, and it was unnecessary for the defendant to prove what he had not alleged. The court read to the jury the defendant's plea, and then charged them that "the burden rests upon the defendant in this case to sustain by a preponderance of the evidence his allegations and contentions." The second special ground of the motion shows no error.
3. It is contended that the defendant's proof was at variance with the allegations of his plea, in that the payments which the defendant testified to were not made in the amounts and at the times as alleged. The total amount which the defendant testified he had paid, but was not credited for $350, was shown by his plea as well as by his evidence; and there was no objection to the evidence of the additional payments made by the defendant. As the plea could have been amended to conform to such evidence without changing the nature of the defense alleged, the variance was not fatal. The verdict was authorized by the evidence, and the court did not err in denying the motion for new trial.
Judgment affirmed. Felton and Quillian, JJ., concur.