Arlington Realty Co. v. Broome, No. 6242

No. 6242 | Ga. | May 16, 1928

Beck, P. J.

This case was brought by Arlington Realty Company and R. D. Ballantyne against C. M. Broome Jr. It is an action for reformation of a deed made by Arlington Realty Co. to C. M. Broome Jr. on March 14, 1924. The alleged mistake upon which plaintiffs contend they are entitled to a reformation of the deed consists of a misdescription of the property conveyed. It is also alleged that Ballantyne by agreement should enjoy and use a driveway situated between the residence of Ballantyne and the house occupied by Broome, as a joint driveway, and that by ■ mistake of the scrivener reference to the driveway was omitted from the deed to Broome and certain other deeds referred to, and was also omitted from the sale agreement with Ballantyne. After evidence was introduced by the plaintiff, the court held that there was not sufficient evidence to require submission to the jury of any question as to the use of a joint driveway; but the co,urt did, submit to the jury the question of whether or not theie was a mistake of the scrivener in phrasing a description in the deed to Broome, showing the frontage on a named street as being fifty feet instead of forty-eight and a half feet. The jury returned a verdict for the defendant upon this issue, and a decree was entered accordingly. A motion for a new trial was filed by the plaintiffs. This motion was overruled, and the plaintiffs excepted to that ruling, and to the refusal of the court to allow an amendment to the petition.

Upon the trial the plaintiffs offered the following amendment to the petition: “1. That C. M. Broome was put on notice, by the physical location of the driveway between his house and the house bought by Ballantyne and by the location of the garages at top of driveway, that said driveway was constructed for the use of both houses, and he bought said property with said agreement and understanding according to statement made to R. D. Ballantyne. He and Ballantyne used said driveway as a joint driveway after Ballantyne bought his property, and Broome told him for three months that it was a joint driveway, and it was on this consideration that R. D. Ballantyne made improvements on his property, and Broome knew he was making these improvements and paying for said property based on agreements of defendant that in fact it was a joint driveway.

“2. Said defendant is now estopped by his conduct and admission to deny he bought said property knowing said driveway was a joint drivewajq and that it was by mistake of himself and Arlington Realty Co. that said condition was omitted from this deed.”

The court, upon objection, disallowed this amendment. The court should have allowed it. There is evidence in the'record tending to show that the defendant is estopped by his conduct, coupled with certain statements made by him, according to evidence introduced by the plaintiffs, from denying that the driveway was to be used as a joint driveway for Ballantyne and the defendant. The evidence on the question as to whether Ballantyne was jointly entitled to the use of the driveway with Broome, according to certain agreements between the parties and statements made byBroome, was such as to require the submission of the issue with reference to the driveway to the jury. And while the question as to the'joint use of the driveway may be separate and distinct from the issue as to whether the plaintiffs are entitled to have the deed reformed, nevertheless these questions are so related to one another that the error in refusing to allow the amendment referred to requires the grant of a new trial upon the entire case.

The rulings made in headnotes 2 to 6, inclusive, do not require elaboration. Judgment reversed.

All the Justices concur.