
    5195.
    Southern Railway Company v. Adams.
    Decided January 20, 1914.
    Rehearing denied February 4, 1914.
    Appeal; from Hall superior court — Judge J. B. Jones. August 2, 1913.
    
      C. R. Faulkner, Adams & Quillian, for plaintiff in error.
    
      A. C. Wheeler, contra.
   Pottle, J.

1. The direct exception to the direction of the verdict in the plaintiff’s favor was not made within the time required by law. Civil Code, § 6152.

2. A motion for a new trial based solely upon the general grounds, that the verdict is contrary to law and evidexxce, raises only the question Whether there was any evidence to authox-ize the verdict. The fact that this verdict may have been returned by direction of the court does not alter the rule. Under such an assignment of eri'or the coux-t can not detennine whether this directed verdict was error; for there may have been some evidence which supported the verdict. Moody v. Southern Railway Co., 14 Ga. App. 258 (80 S. E. 911).

3. There being some evidence to authox-ize the verdict in the plaintiff’s favox-, the discretion of the trial judge in overruling the motion fox-new tx-ial will not be distux-bed. There being some evidence which Would warrant a finding that the railway company wx-ongfully refused to deliver to the plaintiff the car of coal for the value of which the suit was brought, axxd wrongfully converted the coal to its own use, the plaintiff could waive the tort axxd sue on an implied promise to pay for the coal. While the evidexxce does not clearly show the value of the coal, the' suit was on open account for the valxxe, and the plaintiff testified that the account sued on was cox-rect. This testimony, together with the other evidence in the case, was sufficient to make out a prima facie ease fox- the plaintiff. Judgment affirmed.  