1. Where timber is sold at a certain price upon the stump, the purchaser, after having cut it, is bound under the contract to pay for it although he left it upon the premises of the seller.
2. Where the seller afterwards, in ignorance of the identity of the timber, purchases it from another, to whom the original purchaser has abandoned *705it, the original purchaser is not thereby relieved of his obligation to pay the seller for it. See, in this connection, Tharp v. Anderson, 31 Ga. 293; Spiers v. Hubbard, 12 Ga. App. 276 (78 S. E. 136).
Decided February 28, 1924. Thomas & Wallcer, for plaintiff in error in main bill. James R. Thomas & 8on, contra.3. Where in such case the purchaser of the timber brought suit against the seller to recover the amount of an alleged indebtedness claimed to have arisen out of another contractual obligation between the parties, and the seller filed a set-off against the purchaser, to recover the contract price for the timber, and the undisputed evidence showed the above facts, a finding in favor of the purchaser on the set-off was without evidence to support it, and the verdict finding generally for the plaintiff was unauthorized, and the court erred in overruling the defendant’s motion for a new trial.
3. The original order granted on the defendant’s motion for a new trial having provided that the movant should have until the final hearing to prepare and present for approval a brief of the evidence, the motion of the plaintiff as respondent, made at the hearing of the motion for a new trial, to dismiss the motion for a new trial, upon the ground that the brief of evidence had not been presented for approval within the time required by law, was without merit.
Judgment reversed on the main bill of exceptions; judgment affirmed on the cross-bill.
Jenkins, P. J., and Bell, J., concur.