164 Ga. 628 | Ga. | 1927
Lead Opinion
On April 1, 1925, the plaintiffs brought a petition against the defendant, to enjoin him from cutting timber on described land claimed to be^owned by the plaintiffs in fee simple, and for damages in cutting the timber and other acts destructive of the freehold. The defendant filed an answer in the nature of a cross-petition, to which the plaintiffs filed demurrers. The court below overruled the plaintiffs’ general demurrer to the defendant’s cross-petition, and the plaintiffs excepted pendente lite to this judgment. The defendant amended his answer to meet certain grounds of the demurrer. The cross-petition set up a parol contract for the purchase and sale of the real estate in controversy, with possession of the land and valuable permanent improvements made thereon as set out in the answer. The defendant prayed for specific performance of the contract-, damages, etc.. The plaintiffs contend that the cross-petition and amendments thereto did not set up sufficient grounds for equitable relief in the way of specific performance, and therefore that the court below erred in allowing the amendments to the answer, and in overruling the demurrer thereto. It is insisted that the alleged parol contract is void, because it does not bind the defendant to do anything; that he was not bound to furnish any timber, and was not bound under its terms at any time to pay for the land.
The answer in a measure speaks for itself. It avers, among other
Further averments of the answer are omitted; but sufficient averments are set out above to indicate the affirmative cause of action set up by the defendant’s cross-petition. The prayers of defendant’s cross-petition were, that plaintiffs’ prayers be denied; that an injunction be granted defendant against the plaintiffs, enjoining them from further interfering with defendant’s possession of the land in controversy; that a decree for specific performance of the contract be granted defendant, requiring plaintiffs to execute a fee-simple deed to the lands in controversy to the defendant, upon his paying 'to the plaintiffs $11,000 and interest at the legal rate since June ‘21, 1924; that the defendant recover of plaintiffs $2570 damages as averred in the cross-petition; also certain other damages which defendant averred he had sustained, “if for any reason the specific performance decree, as prayed, can not be granted,” etc. Defendant amended his answer in several respects, among other things averring “that defendant should pay in full the $11,000 purchase-price and interest at the legal rate thereon, to Gragg Lumber Company, at any time prior to the end of two years after said contract was consummated, and by the time the pine timber was completely cut, and upon the payment of same, plaintiff would make the said deed to defendant.” Also “said lairds are now worth $20,000.” Further, “under any circumstances defendant now tenders, and is ready and stands ready to pay the $11,000 purchase-price and full interest, according to the contract, and is ready to perform all agreements entered into concerning said contract,” etc. The demurrer was aimed at the foregoing averments, and others, which are omitted, but which are not necessary to be set out. They must, therefore, be taken as true. And we can not agree to the contentions of the plaintiffs in error, that, under the parol contract as set out, the defendant had nothing to do. The contract, therefore, can not be attacked as being unilateral. If the averments of the answer are to be taken as true, they set out a cause of action for equitable relief, and the court below did not err in overruling the demurrer. The cases cited by the learned attorney for plaintiff in error are not controlling of the present case. The defendant avers that he was put in possession of a definite tract of land, under the contract, as a purchaser thereof, and that the parol agreement was to be re
The special grounds of the motion for new trial are twenty-two in number, and these are also amended by six additional grounds. It would serve no useful purpose to consider each of these grounds separately. It is sufficient to say they complain that the court erred in stating the contentions of the plaintiffs, in charging the jury in certain particulars, and in refusing certain
Taking the charge as a whole it stated the contentions of the
Rehearing
ON MOTION FOR REHEARING.
The plaintiff brought an action against the defendant, to recover certain described premises. The defendant in his answer set up that he had purchased the premises from a third party and procured the plaintiff to advance to him the sum of $11,000 with which to pay therefor, and that the plaintiff took title merely as security for the money advanced. In his ansiver the defendant tendered to the plaintiff the sum of $11,000. On the trial of the ease the jury returned the following verdict: “We the jury find in favor of the defendant. To pay Gragg Lumber Company $1100.00, with interest at 7% from June the 21st, 1924, and all taxes up to date.” Verdicts should have a reasonable intendment. Civil Code (1910), § 5927. The verdict, construed in the light of the pleadings and the evidence, was for $11,000.00, and not for $1100.00, as expressed in figures in the verdict. Heinkin v. Barbrey, 40 Ga. 249; Central Ry. Co. v. Mote, 131 Ga. 166 (62 S. E. 164); Clarke v. Stowe, 132 Ga. 621, 623 (64 S. E. 786).