
    5234.
    Skinner v. Arthur & Westbrook.
    Decided January 27, 1914.
    Complaint; from city court of Americus — Judge Harper. August 11, 1913.
    
      W. T. Lane, for plaintiff in error. B. L. Maynard, contra.
   Roan, J.

1. The excerpt from the charge of the court assigned as error in the motion for a new trial, read in the light of the charge as a whole, was not erroneous, but was a fair exposition of the law applicable to the evidence before the jury.

2. The court committed no error in overruling the defendant’s motion to nonsuit, based on the ground that the evidence did not make out such a ease as would legally entitle the plaintiffs to a verdict; sufficient evidence having been introduced to entitle the plaintiffs to a verdict for the amount sued for.

3. Exception to the refusal to dismiss a petition can not be made in a motion for a new trial.

4. It is not for the defendant to except to a judgment against him because it is for $100 less than, under the evidence, it should have been; the jury having given him the advantage of the fact that he had paid this sum to outsiders for assistance in carrying out the contract, and this payment not having been agreed to or in any way participated in. by the plaintiffs.

5. The main question in this case being as to whether the plaintiffs were entitled to commissions for the sale of the defendant’s real estate, and it being mainly an issue of fact, and having been passed on by a jury, and their verdict being authorized by the evidence, the judgment refusing a new trial will not be disturbed. Judgment affirmed.  