
    4033.
    WATSON v. ASHBURN, executrix.
    There being no substantial variance between the evidence in the present record and that in the record of this case when before this court at the October term, 1910 (8 Ga. App. 566), the decision then made is controlling, and the trial judge did not err in directing a verdict in favor of the plaintiff.
    Decided July 10, 1912.
    
      Action for breach of warranty; from city court of Thomasville— Judge W. H. Hammond. January 10, 1912.
    
      Louis Moore, Roscoe Luke, for plaintiff in error.,
    
      Shipp & Kline, contra.
   Pottle, J.

The facts are fully reported in the former decision. Ashburn v. Watson, 8 Ga. App. 566 (70 S. E. 19). The main defense was that Ashburn, the grantee, had abandoned the possession which he acquired after the execution of the deed by the defendant and his co-warrantor, in consequence of which abandonment Morrison was enabled to acquire possession and maintain it against the paper title which Ashburn held. As to this defense this court held: “The evidence introduced by the defendant along this line was too indefinite and too lacking in particularity to overcome the prima facie case made by the plaintiff upon the introduction of proof of the warranty and of the notice to the warrantor, and of the adverse judgment in the complaint for land.” A careful examination of the evidence in the present record discloses no substantial variance from that in the former record. The testimony of the witness Murphy was relied upon in both trials, to prove the abandonment of possession by Ashburn. The testimony of this witness is no more definite now than it was before, and the former decision is res judicata. There was no error in directing a verdict for the plaintiff. Judgment affirmed.  