Brooks v. Miller , 118 Ga. 676 ( 1903 )

Lamar; J.

■ This case between the same parties, and as to the same subject-matter, has been before this court in 103 Ga. 712, and 113 Ga. 1008. In those decisions it was adjudicated that the letters were sufficiently definite to make a contract; but the letters, which were necessary to bring the case within the requirements of the statute of frauds, were construed'to make a contract of sale conditioned upon Miller; the purchaser, securing a division of the land between the cotenants within a reasonable time. This was not a ruling on evidence, but a construction of the writing, in which alone the contract could lawfully appear. The plaintiff can not rely on parol evidence to establish a contract for the sale of land, nor can he by parol testimony alter or modify the construction which the writings demand. It being admitted that he did nothing to bring about the division, he was not entitled to recover under the terms of the contract. Evidence “ establishing the actual relation of the parties to each other,” “ giving a particular and explicit description of the lots, with their location, value, and capability of division by numerical calculation, without requiring specific and individual selection to equalize the division,” does not afford any excuse for the failure to have the partition which the seller made a condition precedent. The letters mainly xelied on by the plaintiff were considered by this court on the previous hearing, in construing the rights of the parties, and in determining whether a partition was a condition ■ precedent to the sale. But the plaintiff insists that this record contains new evidence, and that a ruling based upon one state of facts is not to be followed where different facts appear in the subsequent hearing. Ocean S. Co. v. Cheeney, 86 Ga. 278, s. c. 92 Ga. 726, 95 Ga. 381. We recognize this rule, and that the new evidence 'need not be voluminous or extensive; for it may happen that a single new fact might supply a missing link, or put an entirely different phase upon the previous testimony. But here the right of the plaintiff is rooted in the writings, which bear only one construction ; and the new evidence introduced affords no excuse for failing to comply with the condition precedent set out in the contract itself. Besides, the plaintiff’s testimony does not sustain his own theory as to there being no necessity for making a division. One-of his witnesses testified: “ I do not think there was a difference of ten per cent, between the most valuable and the least valuable-of the lots.” Another testified that if the division was north and south, there would have been but little difference; but running east and west, there would have been a difference. If there was a difference of ten per cent., a little difference, or no difference at all, the seller had the right to require the partition, and make it a condition precedent. The new testimony offered did not show facts excusing the plaintiff from the obligation imposed by the contract of sale. The verdict was right, and demanded by the evidence. The judgment granting a new trial is therefore

Reversed.

All the Justices coneior.