136 Ga. 653 | Ga. | 1911
On January 9, 1890, Jones executed and delivered to Mrs. Mary Lar am ore a board to make laer a title to lot of land 37 in the 14th district of Lee county, upon the payment of her aróte given for the purchase-price of the larrd, dire Janiaary 9, 1896, or earlier tirara that date in the orient Jones or his heirs or assigns slroarld, prior to the maturity of the note, finish sawiaag and hewing the timber from such lot of land and lot 36 in the same district. On the same date the parties to tire bond for title execrated the following instrument: “Georgia, Lee Cormty, This agreement betarreear Mary Laramore of the one part, and L. C. Jones
1. In the trial of an action involving the contract exhibited by the foregoing instruments, the court properly instructed the jury to the effect that if, upon the date of the execution of such instruments, there were a sufficient number of acres of timber suitable for sawing and hewing on the lots 36 and 37 to amount, at $2.50 an acre, to the sum of $510.00 the principal of the note, then Jones at the maturity of the note was bound to execute to Mrs. Laramore, if in life, and if not, then to her heirs at law, a deed to the lot No. 37.
2. .After the death of Mrs. Laramore, prior to the maturity of the note, . the administrator of her estate was not authorized, merely by virtue of his office aa administrator, to make a private contract with Jones, whereby the contract above referred to between Mrs. Laramore and Jones was rescinded, and the bond for title and possession of the land surrendered to Jones, and the note of Mrs. Laramore surrendered to the administrator, and certain other indebtedness of Mrs. Laramore to Jones and a debt of the administrator to Jones were cancelled.
(a) Such agreement for rescission entered into by the administrator clearly was not embraced in the provisions of either § 3429 or § 3430 of
(b) Accordingly, the court properly struck, on motion of the plaintiff below, the amendment to the defendant’s answer, setting up the contract of rescission in the 13th paragraph of that answer.
3. Many of the assignments of error in the motion for a new trial, upon certain instructions of the court to the jury, and upon the admission and rejection of evidence relating to the matter of mesne profits and damages, were eliminated by the verdict of the jury, which did not find any mesne profits or damages.
4. Under the construction of the contract between Jones and Mrs. Lara-more, as applied by the trial court, and as approved by the preceding notes, the judge did not err in any of the other rulings complained of in the motion for a new trial.
5. Upon the allowance of an amendment to the petition, it was not an abuse of discretion for the trial court to overrule a motion for continuance upon the ground of surprise, where it was not shown how the moving party was surprised, and that he was less prepared to go on with the trial than he would have been if the amendment had not been allowed. Craddock v. Kelly, 129 Ga. 818 (4), 819 (60 S. E. 193).
6. Assignments of error in the bill of exceptions which are not referred to in the brief of counsel for the plaintiff in error will be considered as abandoned.
7. Exceptions pendente lite, though duly allowed and ordered filed as a part of the record, upon which no error was originally assigned in the main bill of exceptions, and upon which counsel made no assignment before the argument of the case, will not be considered by this court. Shaw v. Jones, Newton & Co., 133 Ga. 446 (66 S. E. 240), and citations; Runnals v. Aycock, 78 Ga. 553 (3 S. E. 657).
8. The evidence authorized the verdict, and the court did- not err in refusing to grant a new trial.
Judgment affirmed.