Lary v. Lewis , 76 Ga. 46 ( 1886 )

Blandeokd, Justice.

It is quite difficult to ascertain the case from the pleadings. They seem to have tried the case without reference to the pleadings, and the only assignment of error is, that the court erred in refusing a new trial; so we will treat the case as the parties themselves did. We make this out of the confusion which hangs around the case: Lary sold to Lewis S71 acres of land, for which Lewis paid him thirty-three hundred dollars. Lewis had afterwards become indebted to several persons some seven or eight hundred dollars, and also to Lary in all about $1,400. Lary agreed, if Lewis would make him a deed, that he would take up the indebtedness of Lewis and give him time to pay it, and that he Would re-convey the land to Lewis when he paid the fourteen hundred dollars. Lewis made the deed, and Lary refused to comply with his part of the bargain, and took possession of the land, and hela it for the years 1882,1883, 1884,1885.. The evidence shows that Lary only received $150 for the land in 1882, but that the same was worth two hundred and fifty dollars per annum. Lary testified that he was willing to make Lewis a deed to the land if he would pay the fourteen hundred dollars which he owed him. The jury found that Lary make Lewis a title to the land upon payment of four hundred'and seventy dollars. It is conceded that the jury arrived at the verdict by allowing Lewis one thousand dollars for the rent of the land, which, deducted from the sum of $1,470 due Lary by Lewis, left $470, the sum found by the jury. It is manifest that the jury should not have charged Lary but $150 for rent for the year 1882, whereas they charged him two hundred and fifty for that year It is- certain that the sum of four hundred and seventy dollars decreed to be paid by Lewis to Lary should be five hundred and seventy dollars; and ii the defendant in error will amend the decree, and make the same five hundred and seventy dollars, and pay the costs of bringing the caseto this court, then the judgment of the court below will be affirmed ; otherwise, let it be reversed and a new trial granted.

The parties have thought proper to try this case without reference to the pleadings. The court was invoked to grant a new trial alone upon the ground that the verdict is not supported by the evidence. The court refused the new trial; no errors of law are complained of. The judgment is affirmed, as before directed; otherwise, reversed.

Judgment affirmed on terms.