Nicholls v. Popwell , 80 Ga. 604 ( 1888 )

Simmons, Justice.

Popwell filed his bill in Wayne superior court against Sylvester Mumford, of Wayne county, and John C. Nicholls, of Pierce county; wherein- he alleged, in substance, that he had purchased a certain tract or tracts of land from the respondents, for the sum of $850 ; that he was to pay in cash $700, and to pay $150 when Nicholls should make him a warranty .deed to his half-interest in the land, and Mumford a quit-claim deed for his half interest; that.he paid the $700 in cash to Mumford, to whom Nicholls had sent him, telling him that any trade or arrangement he made with Mumford would be satisfactory to him (Nicholls); that Nicholls and Mumford owned the land jointly; and that when he paid the money he got a receipt for the same, signed “ Nicholls & Mumford,” each one of them taking half of the money; that Nicholls and Mumford refused to comply with their part of the contract, pretending that they had only sold him the Palmer place, which contained only 330 acres ; whereas in truth and in fact, they had sold him not only the Palmer place, but the adjoining lands thereto, containing a thousand acres more or less. He therefore filed this bill, asking a decree for specific performance, compelling the respondents to make him a deed or deeds in accordance with their contract, and tendering in his bill the balance of the purchase money. Nicholls demurred to the bill, upon the grounds: (1) that he did not reside in Wayne county but in Pierce county, and that therefore the court had no jurisdiction as to him ; and (2) because said contract was too uncertain .as to the quantity of land, and the description too imperfect as to the metes and bounds .to be capable of specific performance. He also answered the bill, alleging that he had never bargained or sold to the complainant the land described in the bill, and that to a considerable ;portion of the land described therein, he had no title, and never had. It was admitted that he did tell the complainant that he was willing to take $400 for an undivided half interest in the Palmer place, 320 acres, and would make him a warranty deed to that place. Nicholls admits having received half of the $700 paid by the complainant, and says in his answer that upon the payment of the other half, he is willing to make the complainant a deed to the Palmer place, and that the Palmer place was well worth the $850.

Mumford in his answer admits receiving the money as charged by the complainant, but denies that he ever made any contract of sale with him as set out in his bill. He alleges that the complainant represented to him that he had made said contract with Nicholls, the respondents’ co-tenant, and in giving the receipt for the money, he acted solely on the representations made to him by the complainant, to the eifect that he had purchased the lands adjoining the Palmer place, with said place, from said Nicholls ; that he knew nothing of the boundaries of the land, as described in the complainant’s bill, because the deeds were in the possession of his co-tenant, Nicholls, and that he would not have sold-' all of that land for $850-, and intended only to sell the Palmer place, 330 acres; that he informed the complainant that he would not sell said lands for less than $1,500 ; that the Palmer place was itself worth the $850, and that he was willing to make a deed to that place according to his contract, when the balance of the purchase money was paid.

¥/hen the case came on for trial in the court below, the demurrer of Nicholls was overruled by the court; whereupon he filed his bill of exceptions pendente lite. Upon the trial of the case, the jury found in favor of the complainant, and found the boundaries of the land to be as. described in the complainant’s bill and amended bill. The. court decreed that, upon payment of the balance of the. purchase money, the respondents should make deeds as set out and claimed in the complainant’s bill. The respondents made a motion for a new trial, upon the several grounds contained therein, which was overruled by the court; whereupon they excepted.

The main points in the motion for a new trial argued before us were: (1) that the court erred in overruling the demurrer of the respondent, Nicholls, to the bill; and (2) that the verdict was contrary to law and to the evidence.

1. This court has held that the overruling of a demurrer is not a ground for a motion for a new trial, even if the overruling be wrong. Griffin, adm'r, vs. The Justices, etc., 37 Ga. 96 ; Rogers, adm'r, vs. Rogers et al., 78 Ga. 68. Whether the decision overruling the demurrer be right or wrong, it cannot be made the ground for getting another jury trial, is declared by Judge Bennino in the former of the eases above cited. We therefore cannot consider the main ground relied upon by counsel for the plaintiff in error.-

2. If, however, this were not the rule, and we could consider this ground, we would hold that the court did right in overruling the demurrer. In our opinion, the contract set. out in the bill of complaint was a joint contract, made by Nicholls and Mumford jointly. Popwell alleges in his bill that he saw Nicholls, and that Nicholls told him to go and see Mumford, that Mumford knew his views about the sale, of the land, and that whatever Mumford did would be satisfactory to him (Nicholls). He alleges that in accordance with these instructions from Nicholls he did go to see Mum-, ford and purchased the land described in the bill from Mumford, who acted for himself and as agent for Nicholls, and that Mumford gave him their joint receipt for the purchase money of the land, and in the receipt described the. premises. These allegations, in our opinion, made it a joint contract, and gave the superior court of Wayne county jurisdiction oyer Nicholls, although he resided in Pierce county.

3. We have examined carefully the other grounds of the motion, and the evidence as sent up in the record, and in our opinion, the verdict is sustained by the evidence, and is not contrary to law nor to the principles of justice and equity.

4. Nor did the court commit error in allowing the complainant to explain the joint letter written by himself and Mumford to Nicholls, over the objection of the respondents, as complained of in the 4th ground of the motion. This letter was written after the dispute arose between him and the respondents, and we think he had a right to explain why it was written, and what he meant by certain expressions contained therein.

5. The 5th ground of the motion is so vague and uncertain that we will not discuss it. It does not set forth what was the objection to the production of the deed, whether it was the kind of notice under which the paper was required to be produced, or whether the objection was for want of time in the service, or whether it was to the deficiency of the description of the paper, or how it was required to be produced." We have already discussed the 6th ground of the motion, which refers to the overruling of the demurrer.

6. The 7th and 8th grounds complain that the verdict of the jury is too uncertain to be executed; because the lands described in the original bill are not identical with those described in the amendment to the bill, and the verdict is largely in excess of the number of acres claimed by the complainant. We do not think there is any merit in these grounds.

7. The 9th ground claims, in substance, that if we read the original bill and amendment and the exhibits attached to the respondents’ answer, together with the answer and evidence of the respondents, it is clear that the verdict covers the land to which the respondent has no title. Perhaps this may be true, if we look only to the matters referred to in the motion; but taking the whole evidence together, the complainant’s evidence as well as that of the respondents, we cannot say as a matter of fact that the verdict does cover land to which the respondents had no title. This was a question for the jury to pass upon, and they having found that the respondents did have title to the lands which the complainant claims they sold to him, and the court below being satisfied with their verdict, we will not interfere therewith upon a ground so uncertain as this.

8. The 10th ground complains that the verdict did not dispose of all the issues, because it did not find that the complainant should pay over the balance of the purchase money which he admitted in his bill tobe due. We think there is nothing in this ground. The complainant, in his bill not only tenders the balance of the purchase money to the respondents, but in case they refuse to comply with his request, he asks the court to take charge of it, and to relieve him therefrom. There was therefore no necessity for the jury to make any finding as to this balance of the purchase money. The court in its decree dealt with this balance, and decreed that the complainant should pay it to the respondents upon their making him a deed to the land.

9. As remarked before, when the court overruled the demurrer of Nicholls, he tendered his bill of exceptions pe7idente lite, which was certified by the court, and which was sent up in this record. When the case was called in this court, counsel for the plaintiff in error had not assigned error upon this bill of exceptions pendente lite, and did not ask leave to assign error. When he commenced his concluding argument, he .then asked leave to assign error, which was refused, the court holding that he was too late to do this after the case had been fully argued with the exception of the concluding argument. We think the proper practice is, that when exceptions are made pendente lite to the ruling of the court below, and error is not assigned in the main bill of exceptions, and the exceptions pendente lite are brought up in the record, counsel, before the argument begins here, should assign error thereon. Code, §4250. If he waits until the argument is nearly-concluded, it is too late.

10. It is not the proper practice to make the rulings of the court below which are excepted to pendente lite, and the exceptions filed and certified as required by the statute, grounds in the motion for a new trial.

Judgment affirmed.