5 S.E.2d 782 | Ga. Ct. App. | 1939
1. Neither a judgment overruling a demurrer to a petition nor a judgment sustaining a demurrer to the plea and answer can be made a ground of a motion for new trial.
2. Where the bill of exceptions contains no assignment of error on the judgment striking the plea and answer, or on the judgment overruling the demurrer to the petition, or upon exceptions pendente lite, and no assignment of error on these judgments appears otherwise than in the motion for new trial, no assignment of error on these judgments is presented for this court's consideration.
3. Where in a suit for a breach of contract the plea and answer are stricken, and the damages are liquidated, the plaintiff is entitled to a verdict, and the defendant can not testify as to matters denying the truth of the allegations of the petition.
4. If an owner bids upon her own property at a public auction sale for the purpose of protecting her own interests, in the event her bid is the last and highest, she can be compelled by the auctioneer to pay the commission contracted by her to be paid him for conducting the sale, in the absence of an agreement to the contrary.
As to the first count, the defendant admitted the contract, and that she agreed to pay ten per cent. of the purchase-price to the plaintiff as commission; that she bid $2000 on the property, and that she had failed and refused to pay the plaintiff. She denied that the sale was conducted as provided in the contract; that her bid prevented further bidding; that her acts constituted a breach of the contract; and that she was indebted to the plaintiff in the sum sued for. As to the second count, the defendant admitted that she contracted with the plaintiff to conduct the auction sale of her property as per the contract; that she bid $2000 on the property, and that it was knocked down to her. She denied that the plaintiff complied with the contract in all respects; that he, at the time and in the manner provided in the contract, held and conducted the auction sale; that her bid of $2000 on the property constituted a sale of the property under the contract; and that she was liable to the plaintiff for ten per cent. commission.
The judge sustained the general demurrers of the plaintiff to the plea and struck the plea. The defendant excepted to this judgment *88 pendente lite, but does not, in the bill of exceptions, except to this judgment or assign error on the exceptions pendente lite. The defendant moved to dismiss the plaintiff's petition, which motion was overruled. The case proceeded to trial, and the plaintiff introduced evidence tending to support the allegations of his petition. The jury, under direction of the court, returned a verdict in the plaintiff's favor for $200 principal with interest. The defendant moved for a new trial on the general grounds and by amendment on certain special grounds. Three of the special grounds relate to the action of the court in sustaining the general demurrers of the plaintiff to the defendant's plea and in striking the plea, and to the action of the court in overruling the defendant's motion to dismiss the plaintiff's petition. In another special ground it is complained that the court erred in directing a verdict for the plaintiff in the sum of $200. In the remaining special ground the defendant complained of the refusal of the court to permit her to testify as follows: "I entered into this contract with the plaintiff because I needed to sell this property. I did not make any bid on this property to buy it or keep anybody else from buying it. I did what I could to keep from losing or giving the property away for nothing. There was no bid for $1990 made on this property at the sale, and nobody has asked me to make any deed to the property." The judge overruled the motion for a new trial, and the defendant excepted.
Where the final bill of exceptions contains no assignment of error upon the judgment striking the defendant's plea, or upon the exceptions pendente lite thereto, no question for decision is presented in the bill of exceptions on the judgment sustaining the demurrer to the defendant's plea. A recital in the bill of exceptions that exceptions pendente lite were taken and filed, and a specification in the bill of exceptions of the exceptions pendente lite as part of the record material to an understanding of the errors complained of, do not constitute an assignment of error. Lanier v. Council,
In ground 4 of the motion for new trial the defendant insists that the court erred in refusing to permit her to testify as to matters tending to directly deny the allegations of the plaintiff's petition, and to establish facts defensive of the plaintiff's claim. It was not error for the court to refuse to permit the defendant to so testify. Her answer had been stricken, and she was attempting to testify as to matters that went directly to the correctness of the plaintiff's claim and the truth of the allegations of the petition. O'Connor v.Brucker,
Generally, and in the absence of any provision in the contract to the contrary, an owner of property exposed for sale at auction may bid upon it in order to prevent its sale to another for less than its value. See Beasley v. Burton,
Judgment affirmed. Sutton and Felton, JJ., concur. *90