123 Ga. 418 | Ga. | 1905
(After stating the foregoing facts.) 1. There . was no error in refusing the motion to recommit this case to the auditor. If it was not too late to make the motion, and if the presiding judge had'a discretionary power in regard to it, he did not err in refusing it. On the subject of recommitting to aauditor, see Littleton v. Patton, 112 Ga. 438, (5); Fleetwood v. Bibb, 113 Ga. 618; Sanford v. Tanner, 114 Ga. 1006, 1015; Cureton v. Cureton, 120 Ga. 563.
2. It was determined by this court, when the case was previously before it, that there was nothing in the pleadings which raised the issue whether or not there had been a misappropriation of payments. But on that subject the jury could only inquire whether the demand to which the payments had been applied was correct, just, and due at the time they were made. When the case came on for trial after this ruling, it was sought to amend the pleadings by setting up, as a defense, misappropriation of payments. This the court rightly refused to allow. In Cureton v. Cureton, 120 Ga. 560, it was held that “ An amendment to the pleadings, raising new and distinct issues, is not allowable after the filing of an auditor’s report. But an amendment of a pleading to conform to the evidence submitted before the auditor without objection, and which does.- not raise any new issue, is permis
3. The 13th exception merely seeks to have this same point submitted to the jury; which the defendant was not entitled to have done. The bill of exceptions stated that none of the ex
4. Exception No. 10 alleges error in the auditor’s finding' of fact which is numbered “ 5 ” in his report, on the ground that, to reach the conclusion therein stated, the auditor charged the defendant with interest on the mortgage debt at the rate of eight per cent, per annum, while it is contended that the evidence showed that subsequently to the date of the mortgage an agreement was reached whereby the defendant was not to be charged with any interest whatever, and that this was based on a valuable consideration and was binding. The auditor’s finding of fact which is numbered “ 5,” and to which this exception is directed, is as follows: “ There was due and unpaid on said note on the 20th day of September, 1895, the sum of $1,396.44, and nothing has been paid on it since that date. There is now due said sum of $1,396.44, and interest on the same at eight per cent, per annum from said 20th day of September, 1895.” Immediately following this finding in the auditor’s report occurs finding of fact No. 6, which is as follows: “The items of interest included in the statements of account rendered by plaintiff and by Smith and Wylly to defendant, after October 30, 1891, were the interest on said note, and no other interest was charged. The agreement between plaintiff and defendant that no interest should be charged did not apply to said note.” To this finding no exception was taken, or at least none is now insisted on or contained in the present record. Therefore it stands as being unexcepted to and conclusive. If the agreement to charge no interest did not apply to the note, then it follows, as matter of course, that in estimating the amount due on the note interest would be calculated at the rate stated in it. And therefore the exception to the finding numbered “ 5,” standing alone, is without merit. It is contended by plaintiff in error that this case was one at common law, and not in equity, and therefore that exceptions of fact should have been submitted to the jury; or that, if it should be treated as an .equitable .proceeding, having already been submitted once to the jury it could not afterwards be withdrawn from their consideration by the presiding judge. It is immaterial whether either of
The plaintiff testified that the defendant did not deliver the timber as he agreed. In the brief of the defendant’s evidence accompanying the auditor’s report occurs the following statement:, “ When I applied for last advancement I told Mr. Schmidt that I expected to have a good deal of dealings with him. He declined to advance me money, and that stopped me. I could not go on without help, and his refusal to help me further placed me where I had to stop. (Objection to this evidence — no evidence to support it.) My recollection is I wrote him I could not go on because he would not advance balance of the five hundred dollars agreed on.” Accompanying the auditor’s report in the record, and apparently forming a part of it, is a statement of his rulings on the evidence. One of these is that “Plaintiff objects to defendant’s testimony that he stopped sawing timber for plain-, tiff because the latter refused to make him further advances, on the ground that there is nothing in defendant’s plea to support this evidence. Sustained, and evidence ruled out.” As to considering this ruling, see. Tifton Ry. Co. v. Chastain, 122 Ga. 250.
Judgment affirmed.