Farrell v. Anderson-Dulin-Varnell Co.

On Rehearing. It is urged upon rehearing that the trial court erred in giving plaintiff's charge 1, for the reason that there was a conflict in the evidence as to the exact amount due that the jury could infer from a certain letter that plaintiff claimed less than the amount sued for or than the amount embraced in the statement claimed to have been signed by the defendant. It is *Page 241 sufficient to say that the charge did not instruct a finding for any specific amount and therefore left this question open for the jury to determine. If the charge was misleading in this respect, it should have been explained by a counter charge.

It is next insisted that while the opinion may be correct in holding that the plaintiff could recover under count 3, for money had and received, that defendant was entitled to the general charge as to counts 1 and 2, as for an account and for goods sold. The original brief merely argued the general proposition that the facts would not support an action for money had and received, and we so treated the question. It may be assumed, however, that as all three of the counts were mentioned in the brief that there was an insistence of error as to the refusal of the general charge as to counts 1 and 2 respectively. The trial court cannot be reversed for the refusal of these charges for the reason that they were in effect given or covered by the oral charge, wherein the court instructed the jury that they could not find for the plaintiff unless the defendant agreed to pay the claim as a part of the consideration of the trade between him and Willis.

The application for rehearing is denied.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.