
    Ellard v. Smith.
    September 24, 1913.
    Complaint. Before Judge Jones. Habersham superior court. June 1, 1912.
    
      Sam Kimzey and McMillan & Erwin, for plaintiff-in error.
    
      J. C. Edwards & Sons and J. R. Sutton, contra.
   Atkinson, J.

1. In an action for the purchase-price of cross-ties, there was evidence to the effect that the ties were to be delivered in wagon-load lots at a place designated, and that the purchaser agreed to inspect the ties as each load was delivered. There was no error in charging the jury as follows: “I charge you that if the ties were to be delivered by Mr. Smith, the plaintiff, to the defendant, and that the defendant was to inspect them as they were delivered by the wagon-load, and if he had an opportunity of so inspecting them, and that if he discovered that the ties were not coming up and being delivei-ed according to contract, that then it was his duty to have notified the plaintiff of that fact.”

2. The contract provided that the ties should be of specified dimensions. There was evidence, though contradicted, to the effect that a large number did not conform to the specifications; also to the effect that the purchaser did not acc.ept any of the ties. It was error to charge as follows: (a) “I charge you, on the other hand, if the ties were reasonably within the measurements of the contract between the parties as to size, and were of the class, reasonably of the class, and sort of ties that were to be delivered to him, and if they were delivered, then it would have been the duty of Mr. Ellard, the purchaser, if he was the purchaser, to have received the ties and paid for them.” (6) “Now, if the ties were delivered to Mr. Ellard where he pointed out they should have been, and they were reasonably up to the contract as to specifications, size and kind of timber, and it was his duty to receive them, and you find him liable for them, then you could not credit that account for any amount that he claims he is damaged, but it would be your duty to find the full purchase-price of the amount against the defendant.”

3. The other grounds of the amended motion for a new trial are without merit.

Judgment reversed.

All the Justices concur.  