Opinion
17684.
ARGUED JANUARY 14, 1952.
DECIDED FEBRUARY 13, 1952.
Reformation. Before Judge Thomas. Ware Superior Court. September 8, 1951.
Wilson Wilson, Leon A. Wilson II and Herbert W. Wilson, for plaintiffs in error.
J. Mack Barnes, Gibson Maddox and J. D. Blalock, contra.
1. "A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects, but in such case the demurrer should be renewed if it is still relied on." Livingston v. Barnett, 193 Ga. 640 ( 19 S.E.2d 385); Hughes v. Purcell, 198 Ga. 666 ( 32 S.E.2d 392); Peoples Loan Co. v. Allen, 199 Ga. 537 ( 34 S.E.2d 811); Silverman v. Alday, 200 Ga. 711 ( 38 S.E.2d 419). Accordingly, the present exceptions to the rulings on demurrer do not present any question for decision.
2. An exception to the refusal of a nonsuit will not be considered, where, after a verdict for the petitioner, the general grounds of the defendants' motion for new trial complain that the verdict is contrary to the evidence and without evidence to support it. Martin v. Yonce, 163 Ga. 694 (4) ( 137 S.E. 17); Southern Ry. Co. v. Slaton, 178 Ga. 314, 316 ( 173 S.E. 161); Waters v. Tillman, 194 Ga. 552 (2) ( 22 S.E.2d 173).
3. The excerpts from the charge, complaining of the instruction as given, and of the failure to charge without request, set forth in the third division of the opinion, were not erroneous for any reason assigned.
4. The evidence was sufficient to authorize a finding by the jury that the contract had been changed, after it was signed, so as to include a sale of the land, and to authorize the verdict in favor of the petitioner.
No. 17684. ARGUED JANUARY 14, 1952 — DECIDED FEBRUARY 13, 1952.
Mrs. Ida Lee filed in Ware Superior Court, against S. P. Howard and R. A. Howard Jr., a petition which as amended sought reformation of a contract for the sale of property so as to exclude an alleged sale of land, recovery of the land, and injunctive relief.
General and special demurrers were interposed by the defendants to the original petition. The defendants also filed an answer in the nature of a cross-petition, seeking specific performance of the entire contract.
The trial court overruled the defendants' general demurrer to the original petition. One ground of the special demurrer was overruled, and other special grounds were sustained.
Exceptions pendente lite were filed by the defendants in so far as the above rulings were adverse to them, but they did not renew their demurrers to the original petition, or file any demurrer to the petition as amended.
The uncontradicted evidence on the trial developed the following facts: The land in litigation was owned by Roe Lee Sr., at the time of his death in December, 1946, and the petitioner is his widow. Roe Lee Sr. also left six children. His entire estate was set apart to the petitioner as a year's support at a time when two of the children were minors. Roe Lee Jr. was 20 years old when his father died, and in September, 1947, he married a daughter of the principal defendant, S. P. Howard, and thereafter lived in his father-in-law's home. Jerald H. Lee is still a minor.
Concerning the execution of the purported contract, there was evidence for the petitioner to the following effect: The Lee and Howard families had been closely associated since Roe Lee Jr. married S. P. Howard's daughter, and the petitioner and her son Vincent Lee placed absolute confidence in S. P. Howard. The petitioner had recently told a prospective purchaser of the farm, who offered more than the defendants' purported contract shows and whose offer was turned down: "These are the boys I listen to." referring to Roe Lee Jr. and Vincent Lee. "Whatever they decide . . I will do." Two days before execution of the purported contract, Roe Lee Jr. came to the petitioner's home and said that S. P. Howard would buy the tractor. The following Monday on October 30, 1950, Vincent Lee visited Roe Lee Jr. at the latter's request. S. P. Howard was there at the time and said he had agreed to give their mother, the petitioner, $1550 for the tractor and the equipment that went with it. He asked Vincent Lee to go with Roe Lee Jr. to their mother's home, and said he would come on after a while. Shortly thereafter they went to the petitioner's home. S. P. Howard told her that he would give $1550 for the tractor, and she said she would accept his offer. He then laid a book or paper on the table, and said: "I have written this in pencil . . Our deal with the tractor? I will have to read it for you because you can't read my writing." He read the information concerning the sale of the tractor. Nothing was said about the land. He handed the book to Vincent, and Vincent handed it to the petitioner. Vincent and the petitioner signed what S. P. Howard read. The paper they signed had a little writing on one page. When the purported paper, containing a full page of words and figures, was exhibited to Vincent Lee while he was on the witness stand he testified: He could see places he could not read; the page purporting to be the contract shows erasures over the whole page, and signs of a carbon smudge; it shows a page torn out to the right of the page showing the carbon signs; the carbon signs do not show up in other sections of the book, and no other pages are torn out; there were blurred spots all over the page like it might have been erasures; something had been dotted out and other figures and dollars and cents put in; there was some extra writing in the margin; to the best of his knowledge they were not there when they signed the paper.
S. P. Howard, the principal defendant, testified in part: The petitioner frequently called on him for advice, and he tried to help her sell the place for three years, but nobody bought it. Roe Lee Jr. tried on several occasions to get the defendant to help him buy the place. About the middle of October, 1950, the defendant became interested because his brother, R. A. Howard Jr., wanted the place. The defendant did not want it for himself. He knew Jerald Lee was under age, and that the land had been set apart to the petitioner as a year's support, so he asked the ordinary if it was all right for the petitioner to sell the place. The ordinary told him that she had to get an order to sell it, but if the order was prepared right he would sign it. He did not get an order to sell because the petitioner did not go through with it. He did not expect to put any of his money in the place, but just to let it pay for itself. Roe Lee Jr. and Vincent Lee mentioned buying the place at his house. His proposition was to pay her $100 a month including 2% interest for ten years.
The purported contract to sell shows that the defendants were to have immediate possession of the farm, and that the first payment would not be due until January 1, 1951. A few days after execution of the purported contract the petitioner learned that the defendants had taken possession of the farm. She told the defendant that she had not signed any agreement to sell the farm, and offered to return the money that had been paid for the tractor.
The jury returned a verdict for the petitioner. The defendants' amended motion for a new trial was overruled, and the case comes to this court for review upon their exceptions to that judgment. Error is also assigned in the bill of exceptions on the defendants' pendente lite exceptions, and on the overruling of a motion for a nonsuit, which the defendants made at the close of the petitioner's evidence. Other facts will be stated in the opinion.
1, 2. The rulings announced in the first and second headnotes do not require elaboration.
3. Special ground 4 of the amended motion for a new trial complains of the charge: The petitioner asks "that a certain contract be canceled, that is, the part as to the sale of the land. She alleges and claims that she sold a tractor, but the part of the contract that alleges that she sold the land she asks to be canceled. That is what is known as reformation of a contract." This instruction was not, as contended, error as being the expression of an opinion that the claims of the petitioner were sufficient to make out a case authorizing reformation of the contract.
Special ground 5 complains of the charge: "The issue which you are to try and determine . . is whether or not you will cancel that part of the contract referring to the land, or whether or not you will grant the prayers of the defendant and require that all of the contract be carried out." The brief of counsel for the plaintiffs in error contains a statement: "The judgment of the court is molden to correct the error of not submitting abatement of purchase price, and this error is abandoned." Accordingly, this ground does not present any question for decision by this court.
Special ground 6 complains because the court, after charging the law in reference to the burden being on the petitioner to prove the case by a preponderance of the evidence, instructed the jury that the same rules of evidence apply to the defendants on the prayers of their petition. The defendants having filed a cross-petition seeking specific performance of the entire contract, the above charge was not error for any reason assigned.
Special ground 7 complains of the charge: "Where by the act or consent of the parties or the act of a third person or of the law one person is placed in such relation to another that he becomes interested for him or with him in any subject or property, he is prohibited from acquiring rights in that subject or property antagonistic to the person with whose interest he has become associated." This language was taken from Code § 37-708. While it might have been better not to have given the above Code section in charging the jury, an examination of the pleadings and evidence fails to show how the instruction could have injured the defendants.
Special ground 8 complains because the court, in charging on actual fraud, instructed the jury that, if such "misrepresentations were made by mistake and innocently to the detriment of another and amounting only to legal fraud, it would be effectual for that purpose." This charge was not error for the reason as contended that it amounted to a charge on constructive fraud and was not authorized by the pleadings and evidence.
Special ground 9 complains because the court erred in failing to submit to the jury the allegations of the movants to the effect that they denied the charges of fraud raised by the pleadings and evidence of the petitioner. The court did instruct the jury that the defendants filed their answer in which they ask that the contract, which has been alleged, be specifically performed and carried out in the terms alleged in the contract. It is the duty of counsel to aid the court in determining what issues should be submitted to the jury. Anderson v. State, 196 Ga. 468, 471 ( 26 S.E.2d 755). Accordingly, there is no merit in this ground.
Special ground 10 complains that the court erred in failing to charge any definition of what legal excuses exist for the petitioner not to have read the contract of sale before signing same. The court did charge: "A party to a contract who can read must read or show a legal excuse for not doing so; and that fraud which would relieve a party who can read must be such as would prevent him from reading." If additional instructions were desired, an appropriate request should have been made therefor.
4. In passing on the general grounds of a motion for new trial, it is the duty of this court to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury. Ingram v. State, 204 Ga. 164, 184 ( 48 S.E.2d 891).
The purported contract to sell was written in pencil, and from the date of the alleged execution until the date of the trial the defendants refused to allow the petitioner to see it. An inspection of the photostatic copy of the contract discloses signs of erasures. The manner in which the words are closely written shows that something could easily have been added to the original draft. The figures in the first paragraph, stating the consideration of the contract, appear to have been changed from $1550, which was the amount agreed on for a sale of the tractor, to $13,550. Some words have been added on the margin. The whole page is covered with writing, whereas the evidence for the petitioner is that there was only a little written at the time the contract was signed.
The above evidence was sufficient to authorize a finding by the jury that the contract had been changed, after it was signed, so as to include a sale of the land, and to authorize the verdict in favor of the petitioner.
Judgment affirmed. All the Justice concur.