87 Ga. App. 481 | Ga. Ct. App. | 1953
George A. Campbell sued Mrs. Riley Fillingame for $2000, alleged to be due him by the defendant as commissions earned by the plaintiff in selling certain real property as agent of the defendant, in accordance with a contract entered into between the plaintiff and the defendant on July 16, 1951. The defendant answered and denied the allegations of the petition, and further alleged that the parties entered into a contract on August 8, 1951, which was a novation and superseded the July 16th contract; and that, under that later contract, the defendant was obligated to pay at most only $1250 (5% of the sales price); and she prayed that she have judgment against the plaintiff for $500, which she alleged he had received from the purchasers of the property as earnest money, and which he was holding to apply on the amount alleged to be due him. The trial court, sitting without a jury, after hearing evidence rendered judgment for the plaintiff in the amount sued for. The defendant filed a motion for a new trial on the usual general grounds, which she amended by adding two special grounds. The exception before this court is to the judgment overruling that motion.
The first special ground of the motion for new trial is as follows: “4. Because the court illegally admitted the following evidence over the objection of movant: Mr. P. E. Keiley, sworn for the plaintiff, was asked the following question by plaintiff’s counsel. Question: ‘Was that to be a cash sale?’ Answer: ‘No,
It is elementary law, for which we hardly need cite any authority, that special grounds of a motion for new trial must be complete and understandable within themselves, and that the appellate courts will not consider any ground of a motion for new trial which is so incomplete as to be unintelligible without reference to other grounds of the motion or to the brief of the evidence or to the other parts of the record. See the numerous cases cited under the catchword “Completeness” in Code (Ann.), § 70-301, and at the same place in the supplement thereto.
The ground of the motion for a new trial quoted above is subject to the foregoing criticism. It contains no explanation of the nature of the evidence being elicited from the witness being questioned, no statement or exhibit showing the terms of the contract referred to in the statement of objection to the admission of the evidence, and absolutely no information upon which this court could ascertain whether or not the ground of the motion is meritorious. Without diligent search through the brief of the evidence and the record to ascertain the nature of the evidence or the facts to which the witness was testifying and to fit the question and answer objected to into the context of the witness’s testimony, and, without further reference to the record to ascertain the terms of the contract referred to, this court cannot ascertain whether there is any merit in this ground of the motion. For these reasons this ground is altogether too vague, uncertain, and incomplete to authorize this court’s consideration of the same.
The second special ground complains that the trial court
This ground of the motion for new trial cannot be considered. The improper allowance of an amendment to a petition is the subject matter of a timely and direct exception or of exceptions pendente lite, but is not a proper ground of a motion for a new trial. Bullock & Co. v. Cordele Sash, Door & Lumber Co., 114 Ga. 627 (1) (40 S. E. 734); Domingos v. Dessau, 34 Ga. App. 575 (1) (130 S. E. 544); Georgia-Florida Motor Lines v. Slocumb, 45 Ga. App. 204 (1) (164 S. E. 166); Watkins v. Muse, 78 Ga. App. 17 (2) (50 S. E. 2d, 90).
The plaintiff in error argues, on the general grounds of the motion, that the contract of sale executed by the defendant on August 9, 1951, was a novation of the contract of July 16 (which reserved to the plaintiff a 10% commission on the sale price of the property); and that, under the later contract, the defendant was obligated for a 5% commission. As we view the case, it is unnecessary to decide whether the August 9 contract constituted a novation of the earlier exclusive agency contract between the parties. The first contract did provide that the plaintiff should have a commission of 10% of the sales price of the property and, if there was no novation, the evidence would have authorized a verdict and judgment for the amount sued for under the first contract. However, the second instrument, which was in the form of an offer to buy the property on terms different from those stipulated in the original contract, which offer was made by the eventual purchasers of the property to the defendant through the plaintiff as her agent, and signed as accepted by the defendant on August 9, provided that the
Judgment affirmed.