
    Walker Roofing Company v. Clark.
   Lumpkin, J.

The plaintiff sued the defendant on an open account for $258.53 principal. The defendant pleaded that he owed only $78. The jury found for the plaintiff the latter amount. The plaintiff moved for a new trial. The presiding judge decided that there had been a miscalculation by which the verdict was for $10.40 too little. He ordered that if the defendant or any one for him should on a certain day tender that amount, with interest, to the plaintiff, a new trial he refused; and if not, that a new trial be granted. Held, that the presiding judge ruled in effect that the verdict was erroneous to the extent of $10.40, and refused a new trial only on the condition mentioned. Where a new trial is granted or refused upon a condition of the character indicated above, it should be one the performance or non-performance of which will appear of record; and the grant or refusal of a new trial should not be made to depend on a tender by the defendant,' or any one for him, of an amount “exclusive of the amount of the verdict and cost,” so that the fulfillment or non-fulfillment of the requirement, and accordingly the grant or refusal of a new trial, will depend upon parol, and possibly conflicting, evidence.

July 21, 1915.

Complaint. Before Judge Reid. Newton superior court. January 31, 1914.

G. G. King, for plaintiff. Rogers & Knox, for defendant. • .

(a) Under the circumstances stated, and in the light of the evidence, this court will reverse the judgment, so that a new trial may be had.

Judgment reversed.

All the Justices concur.  