Owen v. Stallings

29 Ga. App. 241 | Ga. Ct. App. | 1922

Jenkins, P. J.

(After stating the foregoing facts.) We do not think that either of the exceptions taken to the charge would justify setting aside the verdict. In Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166), the Supreme Court said: “ A description in a mortgage of a tract of land as the ‘ Zachariah Emerson place, part of lots No. 125 in the 11th district’ in a named county, ‘one part number not known,’ and containing a specified number of acres, is not so indefinite and uncertain as to render the mortgage void. Extrinsic evidence may be resorted to to identify the land. . . The same is true of a description of a tract of land as ‘ The Thomas Bazemore place,’ containing a given number of acres and adjoining lands of named persons. . . Where land is described as the Zachariah Emerson place, ‘part of lots number 125 ’ in a given district, ‘ one part number not known,’ and it appears that no part of the placed named is embraced in lot 125, the lot number may be rejected as surplusage, under the maxim falsa demonstratio non nocet.” In Tyler v. Justice, 120 Ga. 879 (48 S. E. 328), the court»said: “An owner of land ‘ listed ’ it with a real-estate broker, to be sold within a given time at a stated price, agreeing to pay the broker ten per cent, as commission if he sold it, and five per cent, commission if the owner should sell it. The owner sold it within the time specified in the agreement. In a suit against the owner by the broker for his commission, it appeared that the number of the lot was, by mutual mistake of the parties, erroneously stated in the contract, but that the land was otherwise described so as to be easily identified. Held, that, under the maxim ‘falsa demonstratio non nocet’ (see Farkas v. Duncan, 94 Ga. 27), the mere .mistake as to the number of the lot was not sufficient to defeat a recovery by the plaintiff.”

In the instant case, we think the court substantially followed the rule of law above declared. Nor do we think that the other objection to the charge is meritorious, since the court submitted to the jury the question as to whether the defendant rejected the title upon reasonable cause or arbitrarily and capriciously. This we think is substantially a correct statement of the rule governing in such cases. See City of Rome v. Breed, 21 Ga. App. 805 (95 S. E. 874).

Judgment affirmed.

Stephens and Bell, JJ., concur.