SEPTEMBER 5, 1947.
Specific performance. Before Judge Hooper. Fulton Superior Court. May 12, 1947.
T. J. Lewis and Kelley, Hamrick Coogler, for plaintiff in error.
Grant, Wiggins, Grizzard Smith, contra.
1. The burden of showing error rests on the excepting party. If he excepts to the refusal to allow an amendment, and does not show the ground or grounds of objection made to it in the trial court, such refusal will not be held to be error if its rejection appears proper for any reason. The presumption will be that the trial court rejected it for a proper reason, if there is one.
( a) An amendment offered by a defendant, after the time for filing an answer has expired, setting up a new defense of which no notice was given in the original answer, and not accompanied by his affidavit that the new defense was not omitted from the original answer for the purpose of delay, and is not then offered for that purpose, constitutes a valid reason for rejecting the proffered amendment.
2. Since the evidence demanded a verdict for the plaintiff, the alleged errors in the charge will not be considered.
No. 15913. SEPTEMBER 5, 1947.
Frank H. Hairried brought suit against R. E. Richardson for the specific performance of a written contract. Three amendments to his petition were allowed. As thus amended, the petition in substance alleged: On February 11, 1946, the defendant agreed in writing to convey to the plaintiff certain realty located in Fulton County for $6500, which was to be paid as soon as the plaintiff could secure a loan under the so-called G. I. Bill of Rights. Immediately after the contract was made, the plaintiff applied for a G. I. loan of $6500 through Atlanta Federal Savings Loan Association, and at that time agreed to pay all of the expenses incident thereto, including that for an examination of the title for the property being purchased. At the time the contract was entered into, it was understood between the parties that it would take about six weeks to secure the loan, and the defendant agreed that this would be satisfactory, as he did not need the money. The plaintiff secured his loan, and on March 29, 1946, requested the defendant to meet him at the offices of Atlanta Federal Savings Loan Association on the following day at 11:30 a. m. for the purpose of closing the sale. The defendant at that time advised the plaintiff that he would not accept the purchase-money and convey the property described in the contract, since the plaintiff had failed to comply with its terms within a reasonable time. The plaintiff has at all times since he secured his loan been ready, willing, and anxious to pay the defendant the full agreed purchase-price for the land described in the contract, is now ready to do so, and makes a continuous tender thereof. Relying upon his contract, the plaintiff on February 14, 1946, paid Atlanta Federal Savings Loan Association $15 for an appraisal of the property involved, and during the pendency of his loan application purchased at a cost of $520 certain water and heating equipment for installation in the dwelling located on the premises. About March 1, the defendant requested the plaintiff not to close the sale before April 1, 1946, in the event his loan came through during March, as he had collected the rent on the property for that month.
The defendant filed an answer, which he personally verified, admitting the execution of the contract, but denied that the plaintiff was entitled to have it specifically performed, since he had breached its terms by failing to comply with them within a reasonable time after its execution. He denied that he had refused to comply with the contract while it was in force and effect, and said that his refusal to accept the purchase-money and convey the property was after the contract had become void and unenforceable because of the plaintiff's failure to comply with its terms and obligations within a reasonable time.
On February 12, 1947, the defendant's counsel tendered an amendment to the original answer, in which amendment it was alleged that specific performance should not be required because the contract was null, void, and of no effect for the reason "that there was want of capacity upon the part of the defendant to enter into said contract." The amendment was verified by Mrs. H. W. Richardson as follows: "The facts stated in the foregoing affidavit [amendment?] are true, and that the defendant is incompetent to make an affidavit, and that this amendment is not made for the purpose of delay. Deponent is the daughter-in-law of defendant and knows the facts stated to be true, and that no guardian has ever been appointed for defendant." On the same date counsel offered another amendment striking from the defendant's original answer paragraph three, which admitted the execution of the contract in question, and substituted in lieu thereof a denial that the defendant had executed it. This amendment was verified by one of the attorneys for defendant as follows: "The facts set forth in the foregoing amendment are true to the best of his knowledge and belief, and that said amendment is not filed for the purpose of delay only." On objections, the court disallowed both of the amendments, and to his judgments doing so timely exceptions pendente lite were duly presented, certified, and filed as a part of the record.
On the trial the plaintiff introduced in evidence the contract for sale which he and the defendant had entered into. Under the head of, "Special Stipulations," it contained these words: "The following special stipulations shall, if conflicting with the printed matter, control: This contract is being signed subject to purchaser being able to get $6500 loan under G. I. Bill of Rights." He also introduced in evidence a letter, dated March 15, 1946, from T. J. Lewis, attorney for the defendant, addressed to the plaintiff, which withdrew the defendant's offer to sell to the plaintiff the land in question, and stated: "On February 11, 1946, Mr. R. E. Richardson agreed to sell you certain property known as Nos. 91-93 Druid Circle, N.E., Atlanta, Georgia, for the sum of $6500 cash. Mr. Richardson was to furnish good and marketable title and you were to have a reasonable time in which to examine the same. As more than thirty days have elapsed since the proposition to sell has been made and no effort has been made on your part to close the trade, Mr. Richardson feels that you have not exercised your option to buy within a reasonable time and here and now withdraws his proposition to sell, made as aforesaid, and has requested that I notify you."
The plaintiff testified as a witness in his own behalf, and his evidence, which was not disputed, fully supported the allegations of the amended petition.
James H. McClure testified for the plaintiff, in substance: that he was employed by Atlanta Federal Savings Loan Association; that the plaintiff through that association secured a G. I. loan for $6500 about April 1, 1946, with which to purchase the R. E. Richardson property; and that the association had at all times since then been prepared to make and close the loan, and was then ready to do so.
Mrs. Frank H. Hairried, wife of the plaintiff, testified for him, and among other things said: Just before her husband received the letter from Mr. Richardson's attorney on March 15, 1946, notifying him that the agreement to sell was being withdrawn, the defendant told her that he had received an offer of $8000 for the property involved.
The defendant offered no evidence in support of his original answer, and did not himself offer to testify, though present in court during the trial. He sought to prove by two witnesses, who were introduced for that purpose, that he did not have sufficient mental capacity to contract on February 11, 1946; but, upon objections urged, the court held that the testimony was not admissible.
Upon the return of a verdict for the plaintiff, a decree for specific performance of the contract was entered. A motion for new trial, based on the usual general grounds, was made and afterwards amended by adding four special grounds, complaining of the charge of the court; the refusal to charge a written request with reference to tender of the purchase-money as a condition precedent to a suit for specific performance of a contract for the sale of land; and the alleged error in denying to the movant the right during the trial to prove by certain witnesses his mental condition at the time the contract was entered into. The court overruled the motion for new trial as amended. Error was assigned on that judgment and on the exceptions pendente lite.
1. The first question to be disposed of is whether the trial judge erred in disallowing the two proffered amendments to the answer. In this State the right of either party to amend pleadings is very broad, and the practice of allowing them is liberal. Jenkins v. Lane, 154 Ga. 454 ( 115 S.E. 126). "All parties, whether plaintiffs or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Code, § 81-1301. A defendant may, after the time allowed for answer has expired, by amendment change, alter, or modify his original answer ( Phelps v. Daniel, 86 Ga. 363 (3), 12 S.E. 584; Massengale v. Pounds, 108 Ga. 762, 33 S.E. 72; Wynn v. Wynn, 109 Ga. 255, 34 S.E. 341; Georgia Railroad Banking Co. v. Gardner, 113 Ga. 897 (2), 39 S.E. 299; Alabama Midland Ry. Co. v. Guilford, 114 Ga. 627, 40 S.E. 794), and in addition may set up new, distinct, and even contradictory defenses of which notice was not given in the original answer ( Stanton v. Burge, 34 Ga. 435; Hagerstown Steam Engine Co. v. Grizzard, 86 Ga. 574 (2), 12 S.E. 939; Mendel v. Miller, 134 Ga. 610 (2), 68 S.E. 430; Estill v. Estill, 147 Ga. 358, 94 S.E. 304; United States Fidelity c. Co. v. Clarke, 187 Ga. 774, 2 S.E.2d 608), if the defendant attaches an affidavit "that at the time of filing the original plea or answer he did not omit the new facts or defense set out in the amended plea or answer for the purpose of delay, and that the amendment is not offered for delay," as provided in the Code, § 81-1310. The affidavit required by this section, however, is one to be made personally by the defendant and not by his attorney or some other person for him. Royal Fraternal Union v. Hall, 134 Ga. 843 ( 68 S.E. 728). In the instant case, neither of the amendments offered was personally verified by the defendant, though present in court during the trial. One was verified by his attorney, the other by his daughter-in-law. The record does not disclose what objection to or attack was made upon the two proffered amendments to the original answer; and since it is the duty of a plaintiff in error to show error, this court will assume that the trial judge properly refused their allowance as amendments to the defendant's answer for any good reason, including the absence of the accompanying affidavit required by law. Campbell v. Gormley, 184 Ga. 647, 650 ( 192 S.E. 430). In White v. Little, 139 Ga. 522 ( 77 S.E. 646), this court said: "The burden of showing error rests on the excepting party. If he excepts to the refusal to allow an amendment, and does not show the ground or grounds of objection made to it in the trial court, the refusal to allow it will not be held to be error if its rejection appears to be proper for any reason. The presumption will be that the trial court rejected it for a proper reason, if there is one." And this court again, in Sewell v. Anderson, 197 Ga. 623 ( 30 S.E.2d 102), held the same. Since, in the case at bar, the failure to attach to the amendments a proper affidavit as required by law constitutes a valid reason for their disallowance, and since the record is silent as to whether or not the proffered amendments were objected to, or demurred to, and if so, on what grounds, it will be presumed by this court that the trial judge rejected them because of the failure to attach a proper affidavit, and for that reason his judgments of disallowance are not erroneous.
2. The plaintiff's evidence demanded the verdict which was rendered in his favor, and this being true, it is unnecessary to consider whether the charge of the court is open to any of the criticisms made upon it. White v. Southern Ry. Co., 123 Ga. 353 (4) ( 51 S.E. 411); Poole v. Atlanta Joint Stock Land Bank, 189 Ga. 59 ( 5 S.E.2d 368); Lunsford v. Armour, 194 Ga. 53 ( 20 S.E.2d 594).
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.