53 Ga. App. 112 | Ga. Ct. App. | 1936
Mrs. L. M. Leach brought suit against W. C. Carver, to recover $200 as representing a portion of the recited consideration in a warranty deed which the plaintiff had given to the defendant, conveying certain described land, which sum it was alleged had not been paid. The deed, which was attached to the petition as an exhibit, recited that the land was sold for and in consideration of the sum of $200 paid by the defendant to the plaintiff and the further consideration of the assumption by the de
The judge ruled that under the contract as represented by the deed, which was in writing and which was unambiguous, the defendant, as part of the consideration, had assumed the payment of the Federal Land Bank loan, whatever the amount might be, and had further agreed to pay the plaintiff the sum of $200. He excluded all evidence as to transactions between the defendant and the Federal Land Bank, including evidence of payrments made by the defendant to the bank and statements from the bank as to the state of the loan, and the loan deed held by the bank. In his charge to the jury he limited the inquiry as to whether, under the
Under a proper construction of the contract as expressed in the deed, the defendant was to assume the indebtedness due to the Federal Land Bank, provided it was approximately $1200. The indebtedness was approximately $1200. The judge did not err in so construing the contract, and did not err in excluding the evidence referred to, and in charging the jury accordingly. Code of 1933, §§ 20-704, 38-501; Renfroe v. Alden, 164 Ga. 77, 79 (137 S. E. 831); Groover v. Simmons, 152 Ga. 423 (2) (110 S. E. 179); Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217); Lynchburg Shoe Co. v. Daniel, 23 Ga. App. 186 (98 S. E. 107). Under the unambiguous contract as expressed in the deed which was- in writing, the consideration for the purchase of the land was the assumption by the defendant of the loan of the Federal Land Bank and the payment to the plaintiff of $200. The evidence presents an issue as to-whether the defendant was to pay, for the benefit of the plaintiff and as part of the consideration, all taxes and insurance against the property. Under the contention of the plaintiff she is entitled to the $200 without any deduction for taxes or insurance. Under the contention of the defendant the payment by him of the taxes and the insurance was part payment of the consideration for the sale of the land. If the defendant was entitled to apply the amounts paid in taxes and insurance towards the purchase-price, these amounts should be deducted from the $200 recited as part consideration in the deed. If he was not entitled so to apply them, he is not entitled to have the payment credited on the consideration recited in the deed. There being an issue of fact between the testimony of the plaintiff and that of the defendant as to the terms of the contract, the credibility of the defendant and his witnesses, in so far as their testimony relates to the nature of the contract, was a matter for the jury. Any conduct on the part of the judge which might have influenced the jury in determining the credibility of the defendant or his witnesses was
Judgment reversed.