The opinion
Ed. F. McFaddin, J. (dissenting). My study of this case leads me to these conclusions:
(1) Under the testimony, the issues as to novation and ratification were questions of fact which should have been submitted to the jury.
(2) The Southern Electrical Corporation not only asked for an instructed verdict, but also asked for several other instructions. These other instructions were not withdrawn and are in the record before us. The trial court said that it considered the other instructions withdrawn ; but the attorneys never so stated, and there was an exception to the court’s ruling in this regard. So, we have a case in which the plaintiff asked for an instructed verdict and also asked other instructions; and, therefore, the court had no right to take the case from the jury if a question of fact was made on novation or ratification.
Under such state of the record, it is my view that the trial court should have submitted the entire controversy to the jury. We should, therefore, reverse the judgment and remand the cause to the trial court for a jury to decide the disputed issues of fact.
Because the majority has rendered judgment rather than remanded the cause, I respectfully dissent.