80 Ga. 472 | Ga. | 1888
In October, 1885, Grantham, having mortgaged certain land, applied to Jones for the means to pay off the mortgage, amounting to $150, with some few days interest at eight per cent. Jones agreed to furnish the amount, and did furnish it; whether by way of loan to Grantham or by way of direct advance to the mortgagee, is in dispute ; that is, whether he loaned the money to Grantham, or merely paid off the mortgage for him, is controverted. The sum actually paid to satisfy the mortgage was $140; but including what Jones paid to an attorney for drawing up the deed, the outlay was $150. Thereupon Grantham made an absolute deed of conveyance to Jones for the premises now in dispute. The deed recites a consideration of $150 paid. Immediately thereafter, Jones executed to Grant-ham an instrument in writing, not under seal, in which he agreed to reconvey, provided Grantham paid him $180 by the 15th of October in the next year. The time fixed being of the essence and having expired, Jones sued out a process to remove Grantham from the premises as a tenant holding over. Grantham and wife thereupon filed a bill against Jones, afteging that Grantham was poor and unable to give security to resist that process, and prayed for an injunction. The bill alleged that the transaction was usurious, but that, nevertheless, Grantham, on the 16th of October, had by the aid of a friend made a tender of the whole $180, and that Jones refused to accept it; and the bill went on to continue the tender, and prayed that Jones be decreed to accept it and make a reconveyance of the property. There were other facts in the bill, but this was its important feature. Upon that bill the judge granted
There are some little hairs in the record on this subject of amendment, which are so trivial that I cannot consume time by picking them out. They are of no consequence.
The statement of the facts in this ground of the motion is all the information we have as to what transpired. We cannot ascertain from the record what paragraph or paragraphs, sentence or sentences in the bill were offered in evidence by the plaintiff. How much of the bill may be said to contain the tender to Jones of the amount due him, may be matter of opinion. If we had, marked off in the bill, such and such passages, such and such parts, or some definite part of that bill as offered in evidence and
On this subject of introducing a part of a document, some authorities have been examined and are here cited. But it is unnecessary to discuss or apply them on this occasion, because whatever the law may be with regard to admitting part of an instrument and withholding the balance, we are sure that if a part only be tendered, that part should be distinctly pointed out, and all of the instrument necessary to make that part fully and correctly understood should go to the jury and be considered. See Davies vs. Flewellen, 29 Ga. 49; Sciple vs. Northcutt, 62 Ga. 42; Heard vs. Russell, 59 Ga. 25 ; Armstrong vs. Lewis, 61 Ga. 680; 3 Greenleaf Ev. §§274, 281; Banks vs. Darden, 18 Ga. 318; Vischer vs. Talbotton Branch R. R. Co., 34 Ga. 536; Anderson vs. Pollard, 62 Ga. 46; Lester vs. Insurance Co., 55 Ga. 475; Walker vs. Griggs, 28 Ga. 552; Munroe vs. Phillips, 64 Ga. 33 ; Dowliny vs. Feeley, 72 Ga. 559 ; Henderson vs. Francis, 75 Ga. 178.
The next ground treats of instructions to the jury how to deal with the subject in the event they found that this subsequent agreement was made and only partly performed by Grantham; but whether these instructions were right or wrong makes no difference, the jury having found in favor of Grantham generally. They did not base their verdict upon the part of the charge of the court that relates to incomplete payment, but upon the part which relates to complete payment; so it is unnecessary to rule further touching this ground of the motion for a new trial.
Judgment affirmed.