
    GODWIN v. ALBANY FERTILIZER COMPANY.
    June 12, 1896. By two Justices. Argued at the last term.
    Affidavit of illegality. Before Judge Bower. Dougherty superior court. April term, 1895.
    Upon the levy of a mortgage fi. fa. for $242 principal, beside interest and costs, the defendant filed his affidavit of illegality, alleging that he was not indebted; that the consideration for the debt sued on was 100 sacks of guano for which he was to pay at the rate of $20 per ton, if said fertilizers proved good and came up to the standard which plaintiff warranted, and this would have amounted to $200 instead, of $242; that the fertilizer was not branded and tagged in accordance with the requirements of the law; 'and plaintiff is not entitled to recover therefor at all; and that the fertilizer was utterly worthless, etc. The jury found in favor of the plaintiff for 90 sacks of guano, $198, beside interest and costs. Defendant’s motion for a new trial was overruled, and he excepted. The motion was upon the grounds, that the verdict.is contrary to law and evidence, and to the charge of the court; and that the verdict shows that the jury credited the defence and intended to sustain defendant’s theory as to the absence of tags, yet the verdict was not such as was required by that theory. Plaintiff contends that all the sacks were tagged; defendant contends that 45 of them were not tagged. The jury adopted defendant’s contention, limiting the nntagged sacks to ten; but while there is abundant evidence to sustain defendant’s contention, there is no evidence to sustain or uphold the limitation to ten sacks; and the jury should have found in defendant’s favor to the extent which the evidence supporting his theory required.
   Lumpkin, J

—As

a finding for the plaintiff to the full amount sued for would have been warranted if the jury had accepted the version of the evidence most favorable to that side of the case, and as the verdict was for a less amount, this court will not disturb it after its approval by the trial judge, there being no complaint that any error of law was committed. Even if it was a compromise verdict, this alone is not cause for setting it aside.

Judgment afflrmed.

Wooten <& Wooten, for plaintiff in error.

D. II. Pope, contra.-  