McKoy v. Enterkin , 181 Ga. 447 ( 1935 )

Bell, Justice.

1. In a suit for land by an administrator, tbe defendant contended that the intestate, his mother, had agreed for him to have the land at her death, in consideration of his paying a stated debt against her. The plaintiff contended, on the contrary, that the defendant had paid the debt solely in consideration of his receiving from the estate of his father, previously divided by agreement, a tract of land more valuable than the shares awarded to the other heirs. Held, that evidence as to relative and greater value of the tract conveyed to the defendant by the other heirs in such division was relevant, being corroborative of the contention of the plaintiff; and the court erred against the plaintiff in excluding such evidence. For this reason, the jury having found for the defendant, the plaintiff’s motion for a new trial should have been sustained. Stone v. State, 118 Ga. 705 (7) (45 S. E. 630, 98 Am. St. R. 145); Summerford v. Davenport, 126 Ga. 153 (2) (54 S. E. 1025); Bedingfield v. First National Bank, 4 Ga. App. 197 (4) (61 S. E. 30).

No. 10952. November 15, 1935. D. S. Strickland, for plaintiff. Aslor Merritt, for defendant.

2. The rule that a party who complains of the rejection of oral testimony must show that the court was informed as to what the witness would answer (Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712)), does not apply to cross-examination. Bell v. Felt, 119 Ga. 498 (46 S. E. 642); Dyar v. Dyar, 161 Ga. 615 (131 S. E. 535); Gilpin v. State Highway Board, 39 Ga. App. 238 (146 S. E. 651).

3. The grounds of the motion for a new trial assigning error on the rejection of the evidence as to value, which the plaintiff sought to elicit on cross-examination, were meritorious, but none of the other special grounds showed error.

4. Since the case must be tried again, no ruling will now be made as to the sufficiency of the evidence to support the verdict.

Judgment reversed.

All the Justices concur, except Bussell, O. J., and Atkinson, J., who dissent.