Bryan v. Barnett

1. The verdict is supported by the evidence.

2. Where the trial judge is satisfied as to the sufficiency of the examination preliminary to the introduction of secondary evidence of a lost original, his discretion in admitting the secondary evidence will not be controlled by this court, unless clearly abused.

3. Where testimony is provisionally admitted, it is the duty of counsel to later renew his objection to the admission of such evidence, if he desires to have it excluded, and upon his failure to do so, reversible error is not shown.

4. Where a ruling of the court is not clear on the admission or exclusion of testimony, it is the duty of counsel to call the matter to the court's attention and invoke a specific ruling.

5. Where a communication between an attorney and the grantor in a lease and option contract is made in the presence of the grantee, it is not a secret or private communication between attorney and client, and the attorney is a competent witness to testify in regard to the transaction on the trial of a case arising out of such transaction between the representative of the grantor and the other party.

6. Where a ground of a motion for new trial is not argued in the brief of counsel for the plaintiff in error, or in oral argument before this court, it will be treated as abandoned.

No. 16576. MARCH 16, 1949. Mrs. Willie Belle Bryan, as guardian of Miss Annie Martin (letters of guardianship introduced in evidence, being dated May, 1948), filed an equitable petition against Mrs. Mag K. Barnett, and in substance alleged: There appears of record in the clerk's office a certain lease and option to purchase valuable real estate, with the name of Annie Martin, the ward of the petitioner, signed thereto, under date of October 22, 1947, and another instrument attempting to modify the terms of the first instrument, dated October 23, 1947, copies of the instruments being attached, marked "Exhibit A" and "Exhibit B." The instruments purport to lease to the defendant certain property for a period of five years, from October 22, 1947, for $40 per month. It is provided in the lease that, in the event Miss Annie Martin should depart this life during the term of the lease, Mrs. Barnett shall have the right to purchase the property for $5500, and in the event Mrs. Barnett should depart this life during the term of the lease, it is agreed that Edward K. McMannon and wife shall have the right to rent and occupy the premises, renew the lease, and purchase the property. It is recited in the lease that a part of the purchase-price, to wit, $100, has been paid. The balance of the purchase-price is due at the expiration of the lease, or renewal, or at death.

The property is described in the petition, and alleged to be worth $25,000, as of October 22 and 23, 1947, with a rental value of $200 per month. At the time of the execution of the lease and option, Miss Annie Martin was of unsound mind, and if the instruments were executed by her, she could not understand their contents or legal import because of her mental condition. At the time of the execution of the contracts, Miss Martin was 90 years of age and infirm, and entirely incapable of comprehending the meaning of a written instrument. The defendant fully knew and fully realized this condition. On May 8, 1948, Miss Martin fell and broke her hip and is confined in the hospital at Washington, Georgia. It is necessary that she have funds with which to pay expenses, and that she receive a reasonable rental on the described property. The defendant has been paying the rent of $40 per month, whereas she should pay $200 per month. The petitioner tenders and offers to return the moneys received under the contract.

She prayed for process, that the lease and option be declared invalid and of no effect, that she have judgment against Mrs. Barnett in the sum of $160 per month from October 22, 1947, less the sum of $100 alleged to have been paid on the purchase-price of the property, and that she have judgment for $200 per month from June 1, 1948, as rental value of the property.

In their answer the defendants admitted the execution of the lease and option contracts as alleged in the petition. They denied that the rental value of the property was $200 per month, or that the sale value was $25,000, and denied that Miss Annie Martin was incapable of comprehending the meaning of a written instrument. For further plea and answer it was alleged that since the filing of the suit Miss Annie Martin had died, and the defendant, Mrs. Barnett, now has the right and authority to exercise the option, and she tenders into court the balance of the purchase-price, to wit, $5400. She prayed that the option to purchase be declared valid and of full force, that the legal representative of the deceased be required to execute appropriate conveyance of the property to her, and for such other and further equitable relief as she may be entitled to in the premises.

The trial of the cause resulted in a verdict for the defendant, and judgment was entered requiring the plaintiff to convey the property to the defendant pursuant to the terms of the option agreement. The petitioner's motion for new trial was overruled and the exception is to that judgment. 1. Counsel for the plaintiff in error (petitioner in the court below) contend that the verdict for the defendant is contrary to the evidence, without evidence to support it, and that a new trial should be granted upon the general grounds. This contention is not sustained by the record. Approximately ten witnesses testified for the petitioner that in their opinion the grantor in the lease and option contract was incapable of understanding the nature of such a contract, and the opinion of these witnesses was duly supported by facts stated by them. Approximately the same number of witnesses testified to facts and stated that in their opinion the grantor in the lease and option contract was capable of understanding her acts and of executing the contract. While the jury would have been authorized to return a verdict for the petitioner, the verdict for the defendant is amply supported by the evidence. It was not error to overrule the general grounds of the motion for new trial.

2. Grounds 1 and 2 of the amended motion for new trial assign error on the admission in evidence of copies of a security deed, and a deed under power of sale, to the grantor in the lease and option contract, the objection made being that the original deeds would be the highest and best evidence, that the originals had not been accounted for, and that such deeds had no probative value.

The guardian testified with reference to the original deeds in part as follows: "I went through Miss Annie's papers and I found what I gave to Mr. Stevens. I looked through those papers after I was appointed guardian. . . I have not completely searched the house. I found one box of papers in the trunk, and those are the only papers that I know of. I don't know if such papers exist or not; I haven't found them."

The guardian was appointed in May, 1947, and the trial of the case was had in September, 1948. The guardian's ward, whose contract the guardian sought to set aside, died in June, 1947. In approximately fourteen months after the death of the ward the guardian had not located or come into possession of the original deeds.

"The sufficiency of the examination preliminary to the introduction of secondary evidence of a lost original is left largely to the presiding judge; and where he is satisfied and admits secondary evidence, his discretion will not be interfered with, unless clearly abused." Turner v. Elliott, 127 Ga. 338 (56 S.E. 434). See also Orr v. Dunn, 145 Ga. 137 (2) (88 S.E. 669); Brookman v. Rennolds, 148 Ga. 729 (98 S.E. 543).

Under the evidence of the guardian, the trial judge did not abuse his discretion in admitting the secondary evidence complained of in grounds 2 and 3.

3. In ground 3 objection is made to the admission of certain testimony, and it is stated: "Whereupon the court held that it was admissible at that stage. Movant then and there and now assigns the same as error for the reasons set forth above."

Where the trial court conditionally admits evidence, it is the duty of counsel objecting to the admission of such testimony to invoke a later and final ruling, if he so desires, and the failure of the court to later exclude testimony provisionally admitted is not error where the party making the objection does not later renew his objection to the admission of such evidence. See Bacon v. Bacon, 161 Ga. 978 (133 S.E. 512); Thompson v. State, 166 Ga. 513 (6) (143 S.E. 896).

4. Ground 4 assigns error on a ruling of the court admitting in evidence a part of the testimony of a witness, and excluding a part of the testimony, it being contended that it was not clear as to what evidence was admitted or excluded, and that the jury was confused by the court's ruling.

If, as contended by counsel for the movant, the ruling of the court was not clear, it was the duty of counsel to call the matter to the court's attention and invoke a specific ruling. The testimony of the witness that the grantor in the lease and option contract was mentally "all right" was admissible. Arnold v.Freeman, 181 Ga. 656 (183 S.E. 811). Where evidence is objected to as a whole and a part is admissible, it is not error to overrule the objection. No error is shown by this ground of the motion for new trial.

5. In ground 5 error is assigned on the refusal of the court to exclude from evidence the testimony of Randall Evans, a practicing attorney of Thomson, on the ground that it was a communication between attorney and client and therefore inadmissible. The record shows that the communications had between the attorney and the grantor in the lease and option contract were in the presence of the grantee in such contract.

In Stone v. Minter, 111 Ga. 45 (36 S.E. 321), it was held that, where a client makes a communication or statement to his attorney in the presence of the opposite party, it is not confidential or privileged, and the attorney is a competent witness to testify with reference thereto. In Griffin v.Williams, 179 Ga. 178 (175 S.E. 449), it was held to be error to exclude testimony of an attorney as to what had transpired when the client and the other parties and the attorney were all present, it being held that under such circumstances it was in no sense a secret or private communication to the attorney.

6. Ground 6 is not argued in the brief of counsel for the plaintiff in error or insisted upon, and will be treated as abandoned.

Judgment affirmed. All the Justices concur.