Jones v. Ragan , 136 Ga. 653 ( 1911 )

Eish, O. J.

On January 9, 1890, Jones executed and delivered to Mrs. Mary Lar am ore a board to make laer a title to lot of land 37 in the 14th district of Lee county, upon the payment of her aróte given for the purchase-price of the larrd, dire Janiaary 9, 1896, or earlier tirara that date in the orient Jones or his heirs or assigns slroarld, prior to the maturity of the note, finish sawiaag and hewing the timber from such lot of land and lot 36 in the same district. On the same date the parties to tire bond for title execrated the following instrument: “Georgia, Lee Cormty, This agreement betarreear Mary Laramore of the one part, and L. C. Jones of the otlier part, both of said State and county, made this January 9th, 1890, witnesseth: That the said Mary Laramore, for and in consideration of the sum of $2.50 per acre, to be paid as hereinafter agreed, ■does hereby sell and eonvey unto the said D. 0. Jones, his heirs and assigns, all the timber suitable for sawing or hewing on 160 acres of land, more or less, of lot of land No. 36, and 100 acre^, more or less, of lot of land No. 37, being all of the timbered land on said lots of land, the same being in the 14th district of Lee county, Georgia; and' it is further agreed that the said Jones is to credit the amount due for said timber on a certain promissory note given in favor of said Jones by said Laramore, and bearing even date with this agreement, for the sum of $510.00, due on the 9th day of January, 1896, 6 years from date, or whenever the said Jones should finish sawing or hewing said timber as aforesaid, by said Jones, in the event it is done sooner, and without interest; and should the number of acres from which the timber is sawed and hewed as aforesaid by said Jones, his heirs or assigns, at the price per acre aforesaid, be more than enough to cover said amount of said note, then the overplus to be paid to the said Mary Laramore, and the same to be due and payable monthly, at the end of each month as fast as so hewed and sawed,, and at the price aforesaid; and if said Jones, his heirs or assigns, fails to use the timber as aforesaid, by the expiration of said six years from this date, then and in that event the said D. C. Jones, his heirs and assigns, are to be due said Laramore for whatever number of acres of timber thus sold that may not then be paid for, and not hewed and sawed. Tn testimony whereof we iave hereunto set our hands and seals, this the 9th day of January, 1890. [Signed] Mary Laramore. D. C. Jones. Signed, sealed, and delivered in presence of: J. V. Covin. H. L. Long.” On the following day H. L. Long made an affidavit, before the clerk of the superior court of Lee county, that he signed the same as a witness and also saw the other witness sign. The instrument was recorded in the clerk’s office of Lee superior court on the date of such affidavit. Held:

1. In the trial of an action involving the contract exhibited by the foregoing instruments, the court properly instructed the jury to the effect that if, upon the date of the execution of such instruments, there were a sufficient number of acres of timber suitable for sawing and hewing on the lots 36 and 37 to amount, at $2.50 an acre, to the sum of $510.00 the principal of the note, then Jones at the maturity of the note was bound to execute to Mrs. Laramore, if in life, and if not, then to her heirs at law, a deed to the lot No. 37.

2. .After the death of Mrs. Laramore, prior to the maturity of the note, . the administrator of her estate was not authorized, merely by virtue of his office aa administrator, to make a private contract with Jones, whereby the contract above referred to between Mrs. Laramore and Jones was rescinded, and the bond for title and possession of the land surrendered to Jones, and the note of Mrs. Laramore surrendered to the administrator, and certain other indebtedness of Mrs. Laramore to Jones and a debt of the administrator to Jones were cancelled.

(a) Such agreement for rescission entered into by the administrator clearly was not embraced in the provisions of either § 3429 or § 3430 of the Civil Code of 1895 (Civil Code (1910), §§ 4005, 4006). But, even if it was, a valid compromise .could not be made by the administrator without an order of the ordinary having first been granted to make it. Nor was such contract of rescission authorized by the Civil Code (1895), § 3428 (lb. 1910, £ 4004), as that section authorizes administrators “to compromise all contested or doubtful claims for or against the estates . . that they represent.” In the present case neither the right of Jones to collect the note for the purchase-price of lot 37, if it had not been paid, nor the right of the heirs at law of Mrs. Laramore to require Jones to execute to them a deed to such lot, constituted a contested or doubtful claim. See Maynard v. Cleveland, 76 Ga. 52, 69 et seq.

August 16, 1911.

Equitable petition. Before Judge Littlejohn. Lee superior court. December 31, 1909.

W. P. Wallis and II. B. Simmons, for plaintiff in error. Ware G. Martin and Shipp & Sheppard, contra.

(b) Accordingly, the court properly struck, on motion of the plaintiff below, the amendment to the defendant’s answer, setting up the contract of rescission in the 13th paragraph of that answer.

3. Many of the assignments of error in the motion for a new trial, upon certain instructions of the court to the jury, and upon the admission and rejection of evidence relating to the matter of mesne profits and damages, were eliminated by the verdict of the jury, which did not find any mesne profits or damages.

4. Under the construction of the contract between Jones and Mrs. Lara-more, as applied by the trial court, and as approved by the preceding notes, the judge did not err in any of the other rulings complained of in the motion for a new trial.

5. Upon the allowance of an amendment to the petition, it was not an abuse of discretion for the trial court to overrule a motion for continuance upon the ground of surprise, where it was not shown how the moving party was surprised, and that he was less prepared to go on with the trial than he would have been if the amendment had not been allowed. Craddock v. Kelly, 129 Ga. 818 (4), 819 (60 S. E. 193).

6. Assignments of error in the bill of exceptions which are not referred to in the brief of counsel for the plaintiff in error will be considered as abandoned.

7. Exceptions pendente lite, though duly allowed and ordered filed as a part of the record, upon which no error was originally assigned in the main bill of exceptions, and upon which counsel made no assignment before the argument of the case, will not be considered by this court. Shaw v. Jones, Newton & Co., 133 Ga. 446 (66 S. E. 240), and citations; Runnals v. Aycock, 78 Ga. 553 (3 S. E. 657).

8. The evidence authorized the verdict, and the court did- not err in refusing to grant a new trial.

Judgment affirmed.

Bee k, J., absent. The other Justices concur.