Opinion
17500.
SUBMITTED JUNE 12, 1951.
DECIDED JULY 9, 1951.
Specific performance. Before Judge Moore. Fulton Superior Court. April 7, 1951.
C. G. Battle, John J. Poole, and Poole, Pearce Hall, for plaintiff in error.
Hamilton Douglas Jr., and White, Douglas Arnold, contra.
1. Ground seven of the motion for new trial complains of the judgment of the court below admitting into evidence, over objection, a copy of the contract sued upon, which showed an entry of recordation. The objection made by the defendant to the admission of the copy into evidence was that it was not properly witnessed to be entitled to record. No other objection was made to its admission. Defendant thus sought to exclude the entire document, including the copy of the contract itself, because the entry of recordation included as a part of the document was ineffective. He made no attempt to exclude the recordation or to have the jury instructed to disregard the recordation. He objected to the document as a whole. When evidence is offered, part of which is admissible and part inadmissible, and the objection is to the evidence as a whole, it is not error to admit it all. Vincent v. Vincent, 181 Ga. 355 (3) ( 182 S.E. 180); Brookman v. Reynolds, 148 Ga. 721 ( 98 S.E. 543). In the instant case, the contract sued upon was certainly admissible. Therefore it was not error to admit the whole document as against the objection made.
2. In the ninth ground of the amended motion for new trial, plaintiff in error complains of the failure of the judge in his formal charge to the jury to instruct them that the issue of constructive notice had been removed from the case. After the defendant in this case had made his closing argument, the court asked plaintiff's attorney to state plaintiff's position as to whether defendant purchased the land in question with constructive notice of plaintiff's contract. Plaintiff's attorney then stated in open court in the presence of the jury that plaintiff abandoned the issue of constructive notice and was relying solely upon proof that defendant received actual notice of the existence of the contract prior to the time he purchased the land. This statement of counsel was in answer to a direct question from the court, and was acquiesced in by the court. Under the ruling in Glover v. Townsend, Crane Co., 30 Ga. 90, a colloquy between the court and counsel may have the effect of a formal charge; and we hold that the colloquy in this case did have that effect, and that the jury were fully informed that the issue of constructive notice was abandoned. See also Southern Railway Co. v. Wright, 6 Ga. App. 172 ( 64 S.E. 703). It follows, there is no merit in this contention.
3. Ground four of the motion for new trial contends that the judge in his charge reinjected into the case the issue of constructive notice by the use of the term, "full notice and actual knowledge," and the use of the word "notice" without qualification; and that it was error to submit that issue to the jury. We can not agree that the charge of the court taken as a whole had the effect of reinjecting into the case the issue of constructive notice. The attorney for the plaintiff had previously abandoned the issue of constructive notice in open court in the presence of the jury. The court had acquiesced in that abandonment. Thereafter, when the court in its charge used the terms, "full notice and actual knowledge" and "notice," the jury must have understood that the notice referred to was such notice as the plaintiff relied upon to recover. That is, actual notice. Whatever the word "notice" might mean as an abstract proposition, under the circumstances in this case, it could only mean actual notice, and we can not say that the jury were misled as to its meaning. There is no merit in this contention.
4. Under the rulings above made, there was no issue of constructive notice in this case, and it was, therefore, not error for the court below to fail to charge the jury the law of constructive notice.
5. The general grounds of the motion for new trial, and special grounds six and eight are not argued in this court, and are considered abandoned. It follows, from what has been said above, the judgment of the court below denying a new trial was not error.
Judgment affirmed. All the Justices concur.
No. 17500. SUBMITTED JUNE 12, 1951 — DECIDED JULY 9, 1951.
Edgar Blalock filed suit against George Finney in the Superior Court of Fulton County, seeking specific performance of a contract for the sale of land. The contract was made by R. J. Gamble and Anna Dora Gamble, as sellers, and Edgar Blalock, as purchaser. Plaintiff alleged that, after the contract was made, the sellers conveyed the property for a consideration to the defendant, George Finney. A full statement of the pleadings will be found in Finney v. Blalock, 206 Ga. 655 ( 58 S.E.2d 429), where the rulings on demurrer are reviewed by this court.
All the questions raised by the bill of exceptions now before this court relate to the allegations in the petition, "that defendant purchased the land in question from R. J. Gamble and his wife, Anna Dora Gamble, and accepted conveyance from them with full notice and knowledge, both actual and constructive, of the plaintiff's right to purchase the same under the terms of his contract with them."
There were three copies of the original contract — the seller's copy, the buyer's copy, and the agent's copy. They were all identical except the buyer's copy, which had added thereon the name of the real-estate agent, Lee J. Howard, as a witness to the signatures of the sellers, and had entered thereon an affidavit made by Lee J. Howard. This copy only had an entry thereon by the Clerk of the Superior Court of Fulton County showing that it had been recorded prior to the purchase of the property by George Finney. There were no other attesting witnesses.
When this copy of the contract was offered in evidence, it was objected to on the ground that it was not properly witnessed in order to be entitled to record. The court overruled this objection, and in making the ruling stated in the presence of the jury, "Well, that comes under the question of whether there was constructive notice. That is not going to keep it from being admitted into evidence."
After the evidence was concluded, defendant's attorney argued the law relative to the constructive notice. Following the argument of law and fact by defendant's attorney and prior to the concluding argument by plaintiff's attorney, the court asked plaintiff's attorney to state plaintiff's position with regard to whether or not defendant purchased the property with constructive notice of plaintiff's contract. Plaintiff's attorney at that time stated in open court that plaintiff abandoned any contention that the defendant had constructive notice of the existence of the said contract, and stated that plaintiff was relying solely upon proof that defendant had received actual notice of the existence of said contract prior to the time defendant purchased the property. Thereafter, plaintiff's attorney made the same statement to the jury. The evidence on the question of actual notice was in conflict.
The court in its charge repeated the allegations of the petition, including the allegations as to actual and constructive notice above quoted, and, after repeating the contentions of the defendant, stated to the jury: "Now, gentlemen, I have called your attention in some detail as to the contentions of the parties as set out in the pleadings. . . They constitute the pleadings in the case; they are not evidence and are not to be considered by you as such." The judge then charged further on the question of notice as follows: "Plaintiff contends . . the defendant Finney purchased the land in question from R. J. Gamble and his wife and accepted conveyance thereto from them with full notice and actual knowledge of plaintiff's right to purchase the premises in question under the contract. . . I charge you, gentlemen, that if you find that the plaintiff had a valid and binding contract with the Gambles to purchase the property in question and that the defendant Finney, after notice that such a contract had been made, cut in, bought and took a conveyance to said property, that said Finney stands in the same place and under the same obligations as the Gambles."
The charge of the court contains references to "notice" without qualification in several other passages.
The jury found in favor of plaintiff. Defendant made a motion for new trial on the general grounds and amended by adding six special grounds. The motion for new trial was overruled, and defendant excepted and assigned as error the judgment overruling the motion for new trial.