3 Ga. App. 573 | Ga. Ct. App. | 1908
The bill of exceptions assigns error upon the refusal to grant a nonsuit, and contains the following recital: “After said refusal of the court to order a nonsuit, the trial proceeded with introduction of evidence by defendant, and by plaintiff in rebuttal ; a verdict and judgment were rendered in favor of the plaintiff. To the action of the court, after its refusal to order a non-suit, in permitting the trial to proceed and in allowing said verdict and judgment to be rendered, the defendant excepted, now excepts, and assigns the same as error, upon the ground that, the refusal to order a nonsuit being erroneous and necessarily controlling in effect, all subsequent proceedings in the case were vitiated and rendered illegal thereby, and were contrary to law.” Attached as an exhibit is a brief of the evidence, duly verified. No motion for a new trial was made. The defendant in error moves the court to dismiss the writ of error and bill of exceptions, on the following grounds: “Because there is no sufficient legal or valid assignment of error upon a final verdict or judgment in said case. Because plaintiff in error does not except or assign error upon
The exception to the final judgment is substantially in the form approved by the Supreme Court in the Lyndon case, 129 Ga. 353 (58 S. E. 1047). The question therefore arises whether a refusal •of a motion to nonsuit is a judgment of such conditional finality ■or of such controlling influence as to support a bill of exceptions under the Civil Code, §5526, or the act of December 20, 1898 (Ga. Laws 1898, p. 92). Of course the grant of an involuntary ■nonsuit furnishes ground for direct exception. Ordinarily, when a nonsuit has been overruled, the case proceeds to verdict, and the ■court is required to review the evidence upon motion for new trial. If the evidence introduced in the trial subsequently to the court’s ruling upon the motion for nonsuit makes out a case in the plaintiff’s favor, although the refusal to grant a nonsuit at the conclusion of his testimony might have been erroneous, the error in refusing the nonsuit is cured, and an exception to a refusal in such cases will- not be favorably entertained. Carr v. Georgia Loan & Trust Co., 108 Ga. 757 (33 S. E. 190); Holder v. Scarborough 119 Ga. 256 (46 S. E. 93), and cit. If, on the other hand, the evidence introduced subsequently to the erroneous refusal to grant a
The overruling of the motion for nonsuit seems to be such a decision or judgment as, “if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause;” and where the plaintiff in error, as in this case, is willing to waive his right to ask a new trial on other grounds, and stands, solely upon the variance between the plaintiff’s pleading and proof, we can not find any precedent or sound reason for saying he can not bring error to the overruling of his motion for a nonsuit. Of course in such cases the reviewing court will look to all the evi
The point made by the motion to dismiss, that it appears that additional evidence was introduced at the trial after the nonsuit was refused, and it does not appear that this additional evidence was insufficient to cure the alleged error in the court’s refusal, is not meritorious. By the'act of 1889 (Civil Code, §5528), the provisions of which are mandatory and not merely directory, “If the case is not one in which a motion for new trial is to be reviewed, the plaintiff in error shall plainly and specifically set forth the errors alleged to have been committed, and shall incorporate in the bill of exceptions a brief of so much of the written and oral evidence as is material to a clear understanding of the errors complained of, and shall specify therein such portions of the record as are material to such understanding. If none of the evidence is material to elucidate the errors complained of, this fact shall be stated and the evidence omitted. The judge to whom such bill of exceptions is tendered shall, if needful, change the same so as to conform to the truth and make it contain all the evidence, and refer to all of the record, necessary to a clear understanding of the errors complained of;” and the certificate to the bill of exceptions recites that it contains all of the evidence material to a clear understanding of the errors complained of. In such case the trial judge, and not the reviewing court, is given the power to decide
2. As to the merits of the case. Ware & Harper, real estate brokers, sold a tract of land for Bice to Mrs. Johnson. In the memorandum of sale attached as an exhibit to the suit it was recited that the property was sold for $25,000 cash, of which $10,000 was already deposited with Ware & Harper, and the remainder was to be paid as soon as the title could be examined and found good; and it was also recited that Bice, upon “completion of said sale and the payment of the balance of the purchase-money,” would pay Ware & Harper the sum of $4,000 as commissions for their services in negotiating the sale. It was for a portion of these eommisions that Ware & Harper instituted the suit. In the petition it is recited, that Bice “is indebted to petitioner in the sum of $2,000, the same being the balance of commissions due them for the sale of a certain mill and land, in accordance with the contract attached” described above; also “that said sale has been consummated and all the conditions of said contract have been complied with by petitioners; that $2,000 of the commissions having been paid, $2,000 remains due.” The proof showed that wdien the trade came to be closed, Mrs. Johnson preferred to give a note for $10,000 of the purchase-price, instead of paying all cash, as ■contemplated in the original memorandum of sale. Bice said the note would be as good to him as cash; and, without consulting Ware & Harper, accepted $15,000 cash and Mrs. Johnson’s note, secured by retention of title to the land, for $10,000. Eice at that time executed to Mrs. Johnson only a bond for title, but after suit was instituted he made her a deed. The point made by the plaintiff in error is that there is a variance between the pleading and the proof; that- the trade described in the memorandum of sale attached to the petition had not been consummated as alleged; that the contract declared on contemplated a payment of $25,000 in cash, and only $15,000 in cash was paid, though a note for the remaining $10,000 was given; that while Bice, by accepting part of the purchase-price in cash and part in a note, might have made himself liable to Ware & Harper for the commissions, he was not there