Greenway v. Scoggins , 154 Ga. 648 ( 1922 )

Gilbert, J.

1. The court did not err in overruling the demurrer, nor in allowing the two amendments to the petition.

2. It is well settled that assignments of error upon the admission of evidence cannot be considered when they do not set out the evidence admitted. See list of cases cited as authority in Mich. Ga. Dig. 2 Cum. Supp. 203.

3. Ground six of the amended motion for new trial complains that the court erred in admitting the testimony of a witness for plaintiff', “ That Mr. Mincey did say that Mr. Greenway never understood the contract until he came to see him about it; he made that statement on two or three occasions,” over objection by defendant’s counsel that “ it did not appear that said statement by Mr. Mincey to witness was in the presence of the defendant,” and “ that it was inadmissible against defendant.” The evidence admitted was not of sufficient materiality to require reversal of the judgment.

4. Another ground of the motion for new trial assigns error on the charge of the court “ as a whole.” The charge of the court not being erroneous as a whole, this ground of the motion is without merit. Powell v. State, 122 Ga. 571 (50 S. E. 369); Foote v. Kelley, 126 Ga. 799 (55 S. E. 1045).

5. The excerpts from the charge of the court complained of in the eighth and ninth grounds of the amendment to the motion for new trial, which seem to exclude from the jury consideration of parol evidence unless they found the contract to be ambiguous, even if inaccurate, were in no event hurtful to the defendant.

6. Error is assigned on the following charge of the court: “The intention of the parties may differ among themselves. In such cases the meaning placed on the contract by one party, and known to be thus understood by the other party at the time, shall be held as the true meaning.” . The criticism is that it was unsupported by the evidence, and because it was not adapted to the case, and because the contract, as movant contends, being unambiguous, the said charge was contrary to law, and not appropriate to the case.” Under the pleadings and the evidence this charge of the court was not erroneous.

No. 3172. December 15, 1922.

7. Error is assigned on the following charge of the court: “If they both believed that Mr. Scoggins was to have 75 per cent, net on the dollar for his merchandise, fixtures, and accounts that were owing to the store, and if their intention, the intention of both of them, was to pay him that, and they both believed as a matter of law that the contract and according to the language of the contract as drawn, if they both believed and both interpreted the contract at that time that that was to be done, then the interpretation by both of them would control.” The criticism is that the charge was an “ intimation by.the court to the jury that if Mr. Scoggins was to have 75 cents' net on the dollar for his interest, then he should recover in the case, whereas the dispute between the parties and the question at issue was how the 75 cents on the dollar for plaintiff’s interest should be computed; and this charge excepted to amounted, movant contends, to an instruction to the jury that if the agreement between the parties ,was that Mr. Scoggins should have 75 cents on the dollar for his interest, then they should find for the plaintiff, and it was an expression by the court of, an opinion that plaintiff is entitled to recover.” This charge was not erroneous for the reason stated.

8. The verdict is supported by evidence.

Judgment affirmed.

All the Justices concur. C. N. Davie and II. E. Perry, for plaintiff in error. Charters, Wheeler & Lilly, contra.