87 Ga. App. 496 | Ga. Ct. App. | 1953
C. B. White filed this suit for damages against G. O. Williams and Benjy Crumley in the Superior Court of Tift County, on November 26, 1951, and alleged substantially: that the plaintiff, for the year 1951, rented from the defendant Williams 7 acres of land to be cultivated in cotton and 3 acres to be cultivated in corn, and the plaintiff was to receive half of the cotton crop grown on the 7 acres and all of the corn grown on the 3 acres; that a house was located on the 7-acre tract, which the plaintiff was to have to live in until he had harvested his crop of cotton and corn during the year 1951, without payment of any rent for the house other than in making the crop on the place, and the plaintiff moved into the house in the winter or spring of 1951 under this express understanding; that the 7 acres of land belonged to the defendant Crumley, who also owned the house thereon into which the plaintiff moved and lived, the defendant Williams having rented said land and house from the defendant Crumley and subrented the same to
The plaintiff’s testimony tended to sustain the allegations of his petition. He testified to the effect that the defendant Williams approached him in the winter or spring of 1951 and wanted to rent him 7 acres of land to be cultivated in cotton and 3 acres to be cultivated in corn; that he agreed to rent this land, and it was agreed between them that the plaintiff was to have half of the cotton crop to be grown on the 7 acres and all of the corn to be raised on the 3 acres, and he was to have the house on the 7 acres to live in until after said crops were harvested. He testified that he moved into the house in March, 1951, and planted the 7 acres in cotton and the 3 acres in corn, cultivated the same, and laid his crops by about the first of July, and nothing remained to be done to said crops except to harvest them when they matured; that soon after his crops were laid by, the defendant Crumley came to him early in July and demanded that the plaintiff pay him $10 per month as rent for the house where he was living or move out; that the plaintiff declined to do so and told Crumley that he had rented the land and house from Williams and was to have the house to live in rent-free until after his crops were harvested; that the defendants then, on July 7, 1951, swore out a dispossessorywarrant proceeding against the plaintiff and dispossessed him, as he was unable to make bond, and then later they gathered the crop before he could do so, although he intended to gather the crop and was undertaking to get a mechanical cotton picker to pick the cotton; that at least 3000 pounds of lint cotton were grown by him on the 7 acres, which was worth 35 cents per pound, and the corn would have made 50 bushels to the acre and was worth $2 per bushel; and that he received no part of said crops or the proceeds therefrom.
The plaintiff testified that he entered into the following agreement: “July 9, 1951. Georgia, Tift County. We, G. O. Williams and C. B. White, make the following agreement: We
Robert Fordham and J. C. Story testified for the plaintiff to the effect that the plaintiff made a good crop of cotton and corn on the 7-acre and 3-acre tracts which he was cultivating for the defendants, and that his crop averaged as good as any in that neighborhood.
At the conclusion of the plaintiff’s evidence, the trial judge directed a verdict for the defendants. The plaintiff made a motion for a new trial, assigning error on the direction of a verdict against him, and the exception here is to the judgment overruling his motion.
It appears that the trial judge was under the impression that the agreement made between C. B. White and G. O. Williams, on July 9, 1951, constituted a novation of their former agreement, and that the plaintiff’s evidence failed to sustain his suit as brought. We think that the trial judge was in error in this respect. The subject matter, terms, and consideration of these agreements were the same. C. B. White was to have half of the cotton grown by him on the 7 acres, and the other half was to go to G. O. Williams. It is true that it was stated in the written agreement, dated July 9, 1951, that Williams was to turn his half of the rent cotton over to Crumley, but this was of no concern to White. The parties to the agreement were C. B. White and G. O. Williams, and the agreement so stated. It amounted to no more than a statement in writing or a renewal of their former agreement.
Code § 20-115 is as follows: “One simple contract as to the
As above stated this suit was for unliquidated damages .and it was in default. Code (Ann. Supp.) § 110-401 provides that where the case is in default, the plaintiff, at any time on or after the first day of the term to which the case is returnable, shall be entitled to verdict and judgment by default as if every item and paragraph of the petition were supported by proper evidence; and his claim, allegation or demand may at anytime thereafter be tried without the intervention of a jury unless the suit is one for unliquidated damages, whether ex contractu or ex delicto, in either of which events the plaintiff shall be required to introduce evidence and establish the amount of damages before a jury, and the defendant may contest the amount of such damages before a jury, with the right to move for a new trial in respect to such damages, and also to except as in other cases. It was ruled in Lenney v. Finley, 118 Ga. 427 (2) (45 S. E. 317): “Where judgment by default is rendered in a case in which the damages are not liquidated, the defendant is thereby concluded as to the truth of all the material allegations of the petition save as to the amount of the damages.” Under the pleadings and the evidence in this case, the only question or issue for determination was the amount of the damages which the plaintiff was entitled to recover.
It follows that the court erred in directing a verdict for the defendants and in overruling the plaintiff’s motion for a new trial.
Judgment reversed.