
    36261.
    DARN v. WISEMAN et al.
    
    Decided July 16, 1956.
    
      
      Maddox & Maddox, for plaintiff in error.
    
      Gordon Lee Sullivan, contra.
   Felton, C. J.

The plaintiff proved his case as laid except as to the penalty sued for, the right to the recovery of which was abandoned, and the court erred in granting a nonsuit. Gray v. Schlapp, 92 Ga. App. 261(1) (88 S. E. 2d 536).

The plaintiff did not disprove his right to recover by showing that he rendered fifty-eight individual statements at a set figure per mile for services from February, 1952, through June, 1953, without rendering a statement for the taxes sued for. The plaintiff testified that sometime during the latter part of 1954 an agent from the Internal Revenue Service of the United States was checking his records and inquired about the payment of the Federal excise tax on the transportation of property and that this was the first he knew that any tax was due on such transportation. The court erred in granting a nonsuit.

Judgment reversed.

Qidllian and Nichols, JJ., concur.  