168 Ga. 439 | Ga. | 1929
J. W. Black and his sister, Roberta Black, brought suit against R. J. Súber, administrator of John Arnett, and alleged substantially: On January 15, 1927, Arnett contracted with petitioners as follows: “Your petitioners were to live with and make their home with said John Arnett for and during his natural life, rendering such services to the said John Arnett as he might from
The motion to dismiss the writ of error is denied. The facts submitted in the motion do not show that the administrator refused to prosecute the writ of error, or that the prosecution was contrary to his wish and control.
Under the rulings in Heery v. Heery, 144 Ga. 467 (87 S. E. 472), and in Rivers v. Landrum, 145 Ga. 103 (88 S. E. 576), the petition set out a cause of action. The petition is not required to set out the facts with the' detailed exactness required as to proof.
The court erred in charging the jury as follows: “The burden in this case, gentlemen, rests upon the plaintiffs to make out their ease to your satisfaction by a preponderance of testimony in the case. A preponderance of the testimony means a superior weight of the testimony upon the issues involved which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a fair and impartial mind to one side of the issues or the other in the case.” In cases like this the burden is not carried by a preponderance of evidence. “ ‘ Where specific performance is sought for the enforcement of a parol contract for the sale of lands, such contract and the terms thereof should be established so clearly, strongly, and satisfactorily as to leave no reasonable doubt as to the agreement.' Printup v. Mitchell, 17 Ga. 558 (63 Am. D. 258); Redman v. Mays, 129 Ga. 435 (59 S. E. 212); Gordon v. Spellman, 148 Ga. 394 (96 S. E. 1006).” Lloyd v. Redford, 148 Ga. 575 (97 S. E. 523); Scott v. Williams, 167 Ga. 386 (145 S. E. 651).
If the defendant desired the court to give in charge certain pertinent sections of the Civil Code (for the failure to do which movants complain), a timely written request should have been submitted.
The court did not err in refusing to admit the evidence of counsel employed on contingent fee. Kitchens v. Pool, 146 Ga. 229 (91 S. E. 81).
Judgment reversed.