114 Ga. 634 | Ga. | 1902
Fleming filed an equitable petition against Mrs. Roberts, alleging in substance as follows: He bad leased from the defendant the timber on certain described lots of land, and the amount agreed upon for such leases had been fully paid. The contract between plaintiff and defendant embraced all of the old field timber owned by the defendant located at a given place and containing from 750 to 1,000 acres. By accident or mistake on the part of both plaintiff and defendant this timber was not included in the written contract, although it was the intention of both parties that it should be. After the contract had been written and signed, plaintiff discovered that the property was not included therein, and called the attention of the defendant to this fact; and defendant agreed that the timber was to have been so embraced, and told plaintiff to let the matter go as it was, that he should have the use of the timber. Acting upon the faith of this promise, plaintiff made’ no further effort at thetime to have the contract reformed so as to have the timber included therein. He accepted the contract or deed for the lease of the timber upon the assurance by the defendant that although the old field timber had been left out, it was intended to pass, and that defendant would make him a lease to the same; and but for this assurance he would never have accepted the deed. Frequently since the deed was accepted the defendant
While of course there is a material difference between a motion to dismiss a motion for a new trial and a motion to disallow an amendment to such a motion, we can see no more reason for not permitting a party to raise for the first time in this court the question as to whether a motion for a new trial should have been dismissed than there would be to allow him to make the point that an amendment to such a motion should have been disallowed. Certainly he should not in either case be allowed to raise for the first time in this court a question which he has had an opportunity to
Judgment reversed. All the Justices concu/rrmg.