133 Ga. 250 | Ga. | 1909
1. The parties to this ease having reduced' to writing their agreement for the sale of the property in controversy, the oral negotiations antecedent thereto were merged in the writing; consequently the portions of the defendant’s answer contained in paragraphs 4, 5, and 6 of the answer, setting up as defense matter embraced merely in oral agreements and negotiations prior to the writing, which were necessarily merged therein, should have been stricken upon demurrer.
2. The court erred, also, in refusing to strike, upon demurrer, paragraph 12 of the answer, on the ground that it did not set forth valid matter of defense beyond a mere conclusion of the pleader.
3. It appearing that land was sold at a cash price, and that time was given by the vendor to the purchaser for the payment of the purchase-money, and a greater rate of interest than that allowed by law was charged on deferred payments, the contract was usurious. Irvin v. Mathews, 75 Ga. 739.
5. Instructions embodying a principle contrary to the ruling made in the 3d headnote were erroneous.
6. It was error for the court to give the following instruction to the jury: “If you believe that at some time, any year that you may believe that the contract was not forfeited, the second, third, or fourth, Coram insisted that he wanted' more money,- — -that is, the money due on that annual payment and money due on the unpaid balances, and if you believe that Ozmore went and made arrangements with Hilton, or with any other person, to furnish him with the necessary amount of money to pay Coram what he was due as purchase-money on the place, and tendered to Coram $600 with all interest due thereon at the time of the tender, it would have been the duty of Coram to have accepted the money and made Ozmore a deed to the land, under this contract.” This charge was erroneous, because not adjusted to the-facts in the case, nor to the pleadings and contentions of the plaintiff.
7. Upon the measure of damages the court charged as follows: “You will calculate the interest on $600 for the first year at 10 per cent., see what Ozmore paid that year, and then calculate the interest for the next year at the same rate and see what Ozmore was due Coram at the time the land was sold, as rents on the place, then add that to $600 and subtract that amount from $1,250, and that will be the amount for which you will find your verdict.” This charge was error, for the reason that it authorized the jury to calculate interest at a higher rate than that allowed by law, and assumed as an established fact that the plaintiff owed to the defendant some amount as rent “at the time the land was sold.”
8. Ho other errors requiring the granting of a new trial are made to appear, though certain of the charges excepted to, in addition to those dealt with above, are open to the criticism that they are inaccurate and not altogether apt in the statement of the law applicable to the issues of the case.
Judgment reversed.