
    15174.
    MITCHELL v. TURNER.
    The evidence demanded a verdict in favor of the plaintiff, and it was error . for the court to overrule his motion for a new trial.
    Decided March 6, 1924.
    Appeal; from Henry superior court—Judge Persons. October 23, 1923.
    
      Reagan & Reagan, for plaintiff.
    
      E. M. Smith, for defendant.
   Luke, J.

Mitchell brought suit against Turner upon an open account, alleging an indebtedness of $200 for the plaintiff’s interest in an engine and boiler owned by them. Turner denied each paragraph of the petition. The evidence for the plaintiff was briefly as follows: that he owned a two-thirds interest and Turner a one-third interest in a boiler and 'engine; and he sold his two-thirds interest to Turner for $200, which has never been paid; that the sale came about in this way: Turner came to his home and asked him if he did not want to sell his two-thirds interest, and he told Turner that he would take $200 for it; that Turner said he would take the boiler and engine if it did not cost too much to fix it up, and that he would go over to Hampton and see what it would cost to fix it up; that shortly thereafter Turner moved the engine away to his own plabe, and came over and jacked up the boiler, putting sills under it and painting it; that later he went to Turner to get pay or a note for the boiler and engine, and Turner said “times was hard and he.did not have the money, but would pay him if he would give him time;” and that at that time Turner said nothing about not wanting to buy the boiler and engine, or about the cost of repairing it, and did not say that he would not take it. Another witness for the plaintiff testified that he heard Turner say that he owned the boiler and engine, having bought MitchelPs two-thirds interest in it. Another witness for Mitchell testified that in conversation with Turner about getting some timber and sills he stated that he had bought a boiler from Mitchell.

Turner in his own behalf testified as follows: that he went to the home of Green Mitchell and asked Mitchell if he would not sell the boiler and engine, and what he would take for his part—the two-thirds interest; that Mitchell said he would take $200, and Turner said that he would give him $200, provided it did not cost too much to fix them up, and that he would find out what it would cost to have them fixed; that he went to Hampton and had a negro to look at the engine, and the negro said it would cost about $20 to “re-habit” or fix the engine, and that he got the engine and carried it home, and had never had it fixed, and still had it at his home; that he carried sills up there and jacked up the boiler, which was down on one end, and put these sills under it, and that he thereafter went there and painted the boiler, to preserve it, because he had an interest in it, that he never did ask Mitchell to paint it, and that all this was after he told Mitchell he would 'take the boiler and engine if it did not cost too much to fix them up; that he never did go back and tell Mitchell he would not take them or tell Mitchell it would cost too much; that he also had John Smith to go there and look at the boiler, and Smith told him it would need new flues and would take 44 flues, and that he later on, in August, went to Atlanta to find out what the flues would cost, and found that they would be $6 apiece, and that it would cost him something over $264 to fix up the boiler with new flues; that it was in January, 1920, when he went to Mitebell to buy the boiler and engine, and that he never at any time went back to Mitchell to tell him he would not take the boiler and engine; that he admitted talking to Stone in presence of Patterson at Weems’ gin, , and told Stone that he had a better boiler and engine than the ones at Weems’ gin, but did not remember that he told Stone that he had bought the boiler and engine from Mitchell and was going to put in two gins. He testified also that C. H. Griffin did come to his place to get some timber or sills, and that he told Griffin that he had some sills up there under the boiler at Green Mitchell’s.

The evidence is positive and uncontradicted that Turner moved the engine away; that, upon being approached by Mitchell for pay for the boiler and engine, he pleaded hard times and asked for indulgence, and that he did not tell Mitchell that he would not take the boiler and engine or that it' cost too much to repair them, or anything of the kind. He admitted having the engine in his pos-1 session, and his every act was such as to justify but one conclusion. Indeed, he did not deny that he stated to two other persons at different times that he had bought the boiler and engine from Mitchell. Hnder the evidence, a judgment was demanded in favor of Mitchell, and it was error to overrule his motion for a new trial.

Judgment reversed.

Broyles, G. <7., and Bloodworth, J., concur.  