Opinion
16898.
JANUARY 13, 1950.
Equitable petition. Before Judge Mallory C. Atkinson. Bibb Superior Court. September 21, 1949.
D. L. Churchwell and John R. L. Smith, for plaintiffs.
Thomas W. Johnson and E. C. Herring, for defendant.
"When there is any conflict in the evidence and the verdict directed is not demanded thereby with all reasonable deductions and inferences therefrom, it is error for the trial judge to direct a verdict, however strongly the evidence may preponderate in favor of the party in whose behalf the verdict is directed." Wood v. Bellamy, 154 Ga. 431 ( 114 S.E. 579).
No. 16898. JANUARY 13, 1950.
The plaintiff, individually, and as next friend of named children, filed an equitable action against the defendant, seeking a decree of the court establishing an implied trust for the benefit of the plaintiffs in certain described real estate. It was alleged: The plaintiffs supplied $666 of the purchase-price, and the defendant furnished $334. The defendant closed the sale and took the title in his own name. All of the funds constituting the purchase-price were delivered by the plaintiff to the defendant, but the defendant and named children of the plaintiff had placed the amounts alleged in her custody for the purchase of the property.
The defendant's general and special demurrers to the petition, as amended, were overruled, and there was no exception to this judgment.
The defendant in his answer contended that all of the funds used in the purchase of the property were supplied by him, that he had placed the money in the hands of the plaintiff for this purpose, and that prior to the purchase she returned to him the amount of the purchase-price.
Upon a trial of the case, at the conclusion of the evidence, the court directed a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the usual general grounds, which was later amended by adding the additional grounds that: (a) there were conflicts in the evidence, and that introduced, with all reasonable deductions and inferences therefrom, did not demand the verdict directed; (b) there were issues of fact under the evidence which only the jury had authority to resolve; (c) there is evidence that would have authorized the jury to find a verdict for the plaintiffs or some of them for some interest in the property described; (d) there were issues of fact which would have been submitted to a jury, and there was evidence introduced which would have authorized the jury to find a verdict different from that directed. The motion for new trial, as amended, was overruled, and the exception is to that judgment.
The brief of the evidence contains more than 100 pages. It could serve no useful purpose to detail this evidence. Certain children of the plaintiff testified as to periods of employment, wages earned, and amounts delivered to their mother for household expenses and for the purchase of a home. The plaintiff testified as to amounts of money received from her children, and that from the moneys received from them she supplied the major portion of the purchase-price of the property. It is apparent from her testimony that she is not an educated person, capable of keeping accurate records. There was some confusion in her testimony. Counsel for the defendant cross-examined the plaintiff at length with reference to her testimony upon a former trial. It was attempted to be shown that upon such former trial the plaintiff had testified that a smaller amount of money was contributed by her on the purchase-price. The jury, however, would have been authorized to find that she supplied at least $666 of the purchase-price, as alleged. The defendant testified that from time to time he placed money in the hands of the plaintiff to be used for the purchase of a home, and that all of the money used for this purpose was supplied by him. Both the plaintiff and the defendant introduced the testimony of witnesses tending to show that each had money from which payment might have been made as contended by the respective parties.
There being in this case issues of fact made by the evidence which should have been submitted to the jury, the trial judge committed error in directing a verdict for the defendant. Code, § 110-104; Hardin v. Rubin, 169 Ga. 608 ( 151 S.E. 31); Ayer v. First Nat. Bank Trust Co., 182 Ga. 765 ( 187 S.E. 27); Everett v. Miller, 183 Ga. 343 ( 188 S.E. 342).
Judgment reversed. All the Justices concur.