14442.
Bennett v. Atkinson Novelty Company.
Decided June 12, 1923.
Complaint; from city court of Jesup— Judge Clark. March 3^ 1923.
The action was upon an open account; and in the demurrer it was contended that the account was not properly itemized. As amended the account was for “ # 400 Novelty Assortment,” sold by the plaintiff to the defendant on a given date,— “ 1631 sales at 10‡ including 6 gold watches, 10 razors, 100 rings, 200 blocks of chewing gum, and 300 beauty pins, total amount, $163.10, less 40% discount, $65.24; balance due, $97.86.”
Gibbs & Turner, for plaintiff in error.
James B. Thomas & Son, contra.
Broyles, C. J.
1. The demurrer to the amended petition was properly overruled.
2. In the instant ease, under the ruling in Atkinson Novelty Co. v. Prince, 28 Ga. App. 497 (111 S. E. 099), the sale and delivery of the goods — which included a “ punch-hoard ” — was a violation of section 397 of the Penal Code (1910), and the seller could not legally recover the price of the goods. The verdict in favor of the plaintiff (the seller of the goods) was therefore contrary to law' and' the evidence, and the court erred in overruling the motion for a new trial.
Judgment reversed.
Luke and Bloodworth, JJ., concur.