Steed v. Bentley , 152 Ga. 267 ( 1921 )

Beck, P. J.

This was a suit for specific performance. The plaintiff prayed for a decree requiring the administratrix of his mother, Mrs. Grace A. Bentley, to execute a deed to the premises in dispute. He based his contention that he was entitled to the execution of such a deed and to specific performance on the ground that his mother had, in consideration of love and affection and the past services rendered by the plaintiff and the agreement on his part to perform certain other services set forth in the petition, made a parol contract to convey to him certain lands. The jury upon the trial of the case returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled, and he excepted.

1. The ruling made in the first headnote requires no elaboration.

2. The court erred in admitting in evidence an unexecuted deed purporting to be a conveyance from the intestate of the defendant, of the tract of land in dispute, to the plaintiff in error. The fact that a deed had been drawn and purported to convey the land in question in accordance with the parol contract upon which the plaintiff bases his right to specific performance might have had weight with the jury in determining the question as to whether the parol contract alleged was actually made and entered into, when as a matter of law it is not entitled to such weight, and was irrelevant, especially in the absence of evidence that the grantor named in the unsigned paper had herself prepared the instrument; and the evidence o'f certain witnesses that she had intended or desired to sign such an instrument did not render the paper itself admissible in evidence.

3. Error is assigned upon the following excerpt from the charge of the court: “ The law places a certain burden on the plaintiff in this case, which he must carry before he would be entitled to have a verdict at your hands, which he now and here asks for in the case. He must show you, and that by evidence in the case, that there was a parol contract between him and his mother, as he contends, and he must show you that contract and the terms thereof. This he must establish so clearly and strongly and satisfactorily as to leave no reasonable doubt as to this contract and its terms. That burden he must carry before he would be entitled to have a verdict at your hands. I charge you that if he does carry that burden, and in the way I have explained to you, he would be entitled to have a verdict at your hands.” The defect in this charge is that it failed to instruct the jury that it would be necessary for the 'plaintiff, in. addition to establishing by evidence the parol contract as alleged to the degree of certainty required, to show by evidence such performance on his part as would entitle him to a decree for specific performance in a court of equity. The court did in other parts of the charge clearly instruct the jury that the plaintiff was required to show performance and compliance with his part of the contract, but the instruction which we have set forth above and which we have held to be defective stands apart and separate from the other parts of the charge; and while this court might not have reversed the judgment on this ground alone, but might have reached the opinion that in view of subsequent portions of the charge the defect in that part of it under consideration was cured or rendered harmless, nevertheless, as the judgment refusing a new trial is reversed on another ground, it is deemed best to point out the defect in the charge complained of, so that the error may be avoided upon the next trial!

4. The other portion of the charge criticised in the motion for a new trial was not error, in view of the note by the court appended to the motion.

Inasmuch as the ease is remanded for a new trial, no opinion is expressed as to the sufficiency of the evidence.

Judgment reversed.

All the Justices concur, except Fish¿ G. J., absent because of sickness.