13 Ga. App. 357 | Ga. Ct. App. | 1913
The two defendants in the lower court were sued together and a single verdict was returned against both, and the two bills of exceptions will be treated together. J. H. Baxter, as administrator of the estate of J. H. Pinholster, deceased, filed suit in the city court of Reidsville, on May 18, 1909, against the Reidsville & Southeastern Railroad Company and the Georgia Coast & Piedmont Railroad Company (companies organized and existing under the laws of Georgia), to recover damages for the breach of a covenant or condition contained in a right-of-way deed from J. H. Pinholster to the Liberty City, Glennville & Manassas Railway Company, a railroad corporation under the laws of Georgia. The covenant or condition referred to is in the following language: “upon the condition that the said railroad company is to put a side-track on said land, and also a warehouse at the place requested by said J. H. Pinholster.” The condition quoted follows holme
The Georgia Coast & Piedmont Eailroad Company filed general and special demurrers to the petition, and also an answer denying all the material allegations thereof. The general and special demurrers were overruled “upon each and all of the grounds stated therein, except as to the ground, urged in argument, that the manner in which the damage alleged to have been sustained in the second count of said petition is not sufficiently set forth.” The plaintiff afterward amended his petition, to meet the order overruling the demurrers, and alleged in the amendment that the warehouse and side-track were to be built on the fifty-foot right of way granted. The defendant thereupon amended its answer, setting up a special defense, as follows: “That the covenants and conditions contained in the deed, a copy of which is attached to the plaintiff’s petition, and for the breach of which damages are asked, is void, in that it is a condition and covenant impossible of performance, in that it is a physical impossibility to construct a main track, a side-track, and a warehouse on the fifty-foot right of way granted in said deed.” This amendment was allowed without objection. The court required of the plaintiff an election between the counts of the petition, and he elected to rely upon the second count. The case was tried before a jury, and resulted in a verdict for the plaintiff in the sum of $400. Exceptions pendente lite to the overruling of the demurrers and to other adverse rulings were filed. Each of the defendant railroad companies moved separately for a new trial, the motions were overruled, and in each bill of exceptions error is assigned upon the interlocutory rulings and upon the refusal of a new trial.
Several assignments of error relate to alleged errors of the court
There is enough in the face of the deed, under the terms of which the Liberty City, Glennville & Manassas Railway Company, which afterward by change of name became the Reidsville & Southeastern
There was testimony that if the side-track and warehouse had been put upon the land within a reasonable time, the location would have been a good shipping point and a good place for a gin and mercantile business. From these facts, as well as from the opinion of the witnesses as to how much these improvements would have enhanced the value of the land, the jury had the right to determine,
The court did not err in admitting in evidence the deed from .the Eeidsville & Southeastern Eailroad Company, which was executed subsequently to the filing of the suit, conveying all of the property of this railroad company to the Georgia Coast & Piedmont Eailroad Company. There was testimony that this contract, while not formally reduced to writing, had been operative and treated as binding upon the parties themselves since March 1, 1906, and was therefore in effect prior to the filing of the suit. The. conveyance itself recited that it was made for the purpose of ef
Judgment affirmed.