Willingham Stone Co. v. Whitestone Marble Co.

Stephens, J.,

concurring specially. All that was held as respects evidence as to a sale, in the former decision of this ease (33 Ga. App. 512, 126 S. E. 859), was that the evidence did not as a matter of law demand the inference that the transaction was a sale. Any statement, if there was any, in that decision to the effect that the evidence might have authorized the inference that there had been a sale was unnecessary to the decision, and was therefore obiter and not the law of the case.

I concur in the judgment affirming the judgment of the trial court in the present case in directing a verdict for the plaintiff, upon the ground that the evidence does not authorize the finding that the transaction was a sale, by reason of the fact that the alleged sale, if made, was made by the alleged agent of the plaintiff to himself as the alleged agent of the defendant, without the express knowledge and consent of the plaintiff and in the absence of full knowledge on the part of the plaintiff of all the facts. See section 3583 of the Civil Code (1910).