20 Ga. App. 53 | Ga. Ct. App. | 1917
J. B. A. Lazenby brought suit against the Citizens Bank, alleging, in substance, that by the terms of his purchase from the defendant of a certain parcel of land, it was agreed between the parties to the sale that if the tenant of the land so purchased should
1. There being evidence to authorize the verdict, this court has no jurisdiction to interfere therewith upon any of the grounds taken in the original' motion for a new trial. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).
3. The second ground in the amendment to the motion for a new trial assigns error upon the ground that one of the contentions of plaintiff was that by a waiver of the landlord’s lien for the rent the defendant had been secured for the $350 furnished by it to the tenant to make the crop on the other tract of land, of which it was not the owner, and also that the item for guano furnished by the defendant to the tenant was to be paid by the tenant from the proceeds of the cottonseed; and the plaintiff in error says that the judge, in stating the contentions of the parties, failed to state these as made by the plaintiff, and assigns such omission as error, prejudicial to his case before the jury. The contentions referred to in this assignment of error were not made in the petition, and were not made as a ground of substantive right of re-eovery, but testimony from both parties that such statements were made by the defendant at the time of the agreement appears in the brief of evidence, which, as we understand, was submitted for the purpose of strengthening and corroborating the plaintiff’s contentions as to what constituted the terms and conditions of the agreement. It does not appear from the charge of the court that the trial judge in any wise undertook to sum up the evidence submitted
4. The third ground assigns error upon the following charge of the court: “I charge you if you should believe the contention of the defendant in this case, and that it was not the agreement to deliver to Mr. Lazenby five bales of cotton, and you should believe that the tenant, Alfred Evans, owed the Citizens Bank $500 on a note, together with $140 as a guano note, and that Mr. Lazenby took this land and was to receive five bales of cotton after the indebtedness of the bank was paid by Alfred Evans, then I charge you Mr. Lazenby would not be entitled to recover.” (a) It is urged for the plaintiff in error that under this portion of the charge the defendant was not compelled or required to prove by evidence the contentions on which it relied, but the jury would have a legal right to find for the defendant if they should merely believe the contentions of the defendant, regardless of the question of proof. Counsel for the plaintiff in error correctly states the principle of law which requires the jury to be governed by the evidence in the pase, and which forbids a finding based upon mere belief in the contentions of parties without evidence in support thereof. But construing the charge as a whole, as it is our duty to do, our opinion is that the necessary and only reasonable import of this portion of the charge relates to the contentions of the defendant as made by the evidence in the ease, especially as the portion of the charge here excepted to was given by the judge as being the contention of the defendant, in contradistinction to the contention of plaintiff, which he had just stated, and in which preceding portion of the charge it was in terms stated that the finding of the jury on those contentions was to be based upon the. evidence in the
(6) The plaintiff in error further excepts to this portion of the charge as follows: “ Said charge was misleading, contradictory, and incomprehensible, because the judge says therein, ‘if the jury should believe that there was no agreement to deliver five bales of cotton to Lazenby, then he (Lazenby) would not be entitled to recover,’ and further on in said charge as above quoted, the judge says in substance, that ‘If the jury should believe that Lazenby took this land and was to receive five bales of cotton after the- indebtedness was paid by Alfred Evans, that Lazenby would not then be entitled to recover.’ The jury under this charge was prohibited from finding in behalf of the plaintiff.” While we think that the trial judge' had previously in his charge well and fairly stated the contentions of each 'of the parties as shown by the pleadings, it is true that in the exception now quoted the issue is not fully and clearly stated. But we differ with counsel in his interpretation that the jury were there told that if they “should believe that there was no agreement to deliver five bales of cotton to Lazenby, then he (Lazenby) would not be entitled to recover;” although such a statement would have been true, and the only impropriety in so .stating would lie in the fact that the only issue involved was as to the condition on which such promise was made. But we think the intervening portion of this extract from the quoted charge must be taken to qualify the interpretation given by counsel, so as to
5. The fourth and last objection made to the charge relates to the following language: “But if you should believe that Mr. Fitzpatrick, the agent of the bank, did not make the trade with Mr. Lazenby that he would deliver him five bales of cotton in the event this tenant made ten bales of cotton, then I charge you Mr. Lazenby would not be entitled to recover the five bales of cotton, or the value thereof, unless you should further believe that Mr. Fitzpatrick was to let him have the land for $3,500 plus an amount sufficient to cover the five bales of cotton as rent, and an amount sufficient to cover the $250 which Mr. Lazenby contends was due the bank.” The error complained of consists in the latter portion of this excerpt, which it is argued was unauthorized either by the pleading or the evidence. We agree with counsel that the plaintiff made no such additional contention as the latter portion of the charge sets forth, but as the contention he did make had been fully, clearly, and fairly presented, and as the excerpt complained of in no way altered the same or .detracted therefrom, or gave to the defendant any right or benefit, we could not say that the inapplicability of this portion of his instructions should render the verdict invalid. It sought to give to the party now complaining a right not held or claimed by him, but in no wise affected the right which he did claim, and which was fairly and fully submitted to the jury-under the correct rules of law. It has very often been held by the Supreme Court and by this court that-an irrelevant charge will not cause a new trial, where it does not appear to have been prejudicial to any rights of the parties, and was not likely to mislead the jury as to the true issues of the ease. 1 Long v. Gilbert, 133 Ga. 691 (66 S. E. 894).
Able counsel for plaintiff in error has presented with much force
Judgment affirmed.