McWhorter v. O'Neal, 123 Ga. 247

McWhorter v. O'Neal

123 Ga. 247 | Ga. | 1905

Cobb, J.

1. The amendment to the plea was offered and rejected on the same day that the portion of the plea which was - sought to he amended was stricken on demurrer. It does not appear which order was passed first. If the original plea was actually stricken before the amendment was offered, that would have been a good reason for disallowing the same. On the other hand, if the amendment was offered and rejected before the plea was stricken, the amendment should nob have been rejected un*250less it was bad in substance. But without reference to this question, we think the amendment was properly disallowed, because it was bad in substance. The contract between O’Neal and his wife was sought to be reformed at the instance of Edith Mc-Whorter, who was a mere volunteer, and who had no interest whatever in the subject-matter of the contract at the time of its execution. Even the contingent interest as a prospective legatee, which she had under the will of her aunt, executed before the latter’s marriage to O’Neal, did not exist at the time, this contract was signed. The power of a court of equity to reform contracts is one exercised with caution, even at the instance of the parties or claimants for value, and the circumstances must be peculiar in their nature before a court of equity will interfere at the instance of a volunteer, if it will interfere at all at the instance of such a party. Gould v. Glass, 120 Ga. 51 (5). There was nothing in the averments of the plea which would make the case such a peculiar one as to take it out of the general rule refusing the equitable relief of reformation to a mere volunteer.

2. The plaintiff attacked the contract sought to be cancelled, upon two grounds, alleging first that it was obtained by fraud, and secondly that it was without any consideration. He would have been entitled to prevail if he established either of these propositions. Counsel for the plaintiff in open court abandoned the contention that the contract was without consideration, and thus practically admitted that if the fraud alleged was not established the defendants would be entitled to prevail. The judge in his charge submitted to the jury both the issue of fraud and the question of consideration, and error is assigned upon a portion of the charge in which it is stated that one of the contentions of the plaintiff was that the contract was without consideration. We think this was such an error as would require the granting of a new trial. The evidence was sharply- conflicting on the question of fraud, and was of such a character that a jury might with propriety find either way. It is possible that some of the jurors might have been unwilling to find for the plaintiff on this issue, and still have thought that they were authorized under the charge to consider' the question whether the contract was without consideration, and may have erroneously reached the conclusion that it was. The effect of the charge, therefore, was to *251give to the plaintiff the benefit of a theory set up in the pleadings, but which had been expressly abandoned in open court.

3. With the exception above indicated, the charges complained of were free from any substantial error. Those grounds of the motion for a new trial which allege that the verdict is contrary to specified portions of the charge raise no question for decision, aud it is useless to encumber a motion for a new trial with such grounds. If the verdict is contrary to the charge of the court, and the charge is correct, the general grounds of the motion, when considered in the light of the evidence, are sufficient to authorize the granting of a new trial. There was no error in rejecting the evidence of witnesses as to what was the intention of the parties at the time the contract between O’Neal and McWhorter was made. The contract was unambiguous and spoke for itself. Nor was there any error in rejecting the evidence of declarations by Mrs. O’Neal to third persons of affection for her niece. The cordial and affectionate relations existing between the two could 'be proved by acts and conduct, as was held by the court. The deed from the near relatives of Mrs. O’Neal, who would have been her heirs if she had • been unmarried at the time of her death, to Edith McWhorter, was irrelevant to the issue on trial and properly rejected. The evidence as to the existence of relatives of Mrs. O’Neal’s former husband was irrelevant, but its admission would not alone have been sufficient to require the granting of a new trial. There was no error in any of the other rulings complained of.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.'