Summary
In Lasseter v. Green, 202 Ga. 148 (2) (42 S.E.2d 480), the Supreme Court said: "There is no merit in the special ground complaining that the court erred in charging § 38-119 of the Code, relating to the presumption arising where one who has evidence in his power and within his reach, to repel a charge or claim against him, fails to produce it. It appeared that two sons of the defendant heard a part or all of the conversation at the time the oral contract was made.
Summary of this case from Price v. Whitley Construction Co.Opinion
15774.
APRIL 17, 1947.
Injunction, etc. Before Judge Boykin. Carroll Superior Court. January 8, 1947.
Willis Smith, for plaintiff in error. Boykin Boykin, contra.
Frank S. Green and Mrs. W. A. Embry filed suit against J. G. W. Lasseter, seeking specific performance of an oral contract for the purchase of described land. It was alleged that the contract price had been paid but that no deed had been executed. Lasseter admitted the existence of the contract of sale, and the payment of the purchase price, but contended that a certain building site had been reserved. The jury returned a verdict in favor of the plaintiffs. The exception is to a judgment overruling the defendant's motion for new trial as amended. Held:
1. The evidence was in sharp conflict on the material issues; hence there was no error in denying a new trial on the general grounds.
2. There is no merit in the special ground complaining that the court erred in charging § 38-119 of the Code, relating to the presumption arising where one who has evidence in his power and within his reach, to repel a charge or claim against him, fails to produce it. It appeared that two sons of the defendant heard a part or all of the conversation at the time the oral contract was made. The defendant relied upon his own testimony alone as to the conversation, and made no effort to explain the failure of his sons to testify. See Cotton States Fertilizer Co. v. Childs, 179 Ga. 23 ( 174 S.E. 708); Blanchard v. Ogletree 41 Ga. App. 4 ( 152 S.E. 116); Moye v. Reddick, 20 Ga. App. 649 ( 93 S.E. 256). It follows that there was no error in denying a new trial.
Judgment affirmed. All the Justices concur.