48 S.E. 234 (Ga. 1904), Conant v. Jones

Citation:48 S.E. 234, 120 Ga. 568
Opinion Judge:SIMMONS, C.J.
Party Name:CONANT v. JONES et al.
Attorney:Moore & Pomeroy and John T. Norris, for plaintiff in error. John H. Wikle, Virgil Jones, and Thos. W. Milner & Son, for defendants in error.
Case Date:July 13, 1904
Court:Supreme Court of Georgia

Page 234

48 S.E. 234 (Ga. 1904)

120 Ga. 568



JONES et al.

Supreme Court of Georgia

July 13, 1904

Syllabus by the Court.

1. In a suit for damages for breach of contract, in which the petition is not verified by affidavit, the defendant is not required to answer under oath.

2. Where some of the allegations of the original answer are, by amendment, made more definite and specific, such amendment, setting up no new facts or defense, need not be verified by affidavit.

3. Where the defendant in a suit for breach of contract defends upon the ground that there had been a release or rescission of the contract, and the answer sets out a copy of this release, there is no error in refusing to strike such defense because the names of the witnesses to the release are not given, the answer stating that they are unknown. Nor does the fact that the defendant apparently intends to prove the release by a copy thereof make it necessary that he should plead this defense under oath.

4. The examination of a witness for the defense before the plaintiff has opened his case should not be allowed except by consent, but the error thus committed in the present case was not such as to require a new trial.

5. In the investigation of the value of property it is not error to exclude evidence as to what the owner would be willing to take for it.

6. There was sufficient foundation laid for the introduction of secondary evidence of the contents of the written release relied upon by the defendants.

7. In the present case there was no error in admitting evidence as to the consideration of the contract, over the objection that "the instrument was under seal, and required no consideration."

8. There was ample evidence to justify the trial judge in submitting to the jury the question whether or not there had been a release of the contract sued on.

9. There was sufficient evidence to authorize a charge on the subject of nominal damages. Nor can the plaintiff complain of such charge when he himself requested that a similar instruction be given the jury.

10. There is no error in refusing a written request to charge which is not adjusted to the case.

11. There is no error in refusing a written request to charge when the charge given on the subject is even more favorable to the complaining party. This is especially true where the charge requested is faulty.

12. Where the jury find for the defendant, the plaintiff cannot have been hurt by any error in the court's instructions as to the measure of damages.

13. A new trial is not required because of newly discovered evidence which is of an impeaching character, and which, being purely negative, is of little value.

14. The evidence authorized the verdict.

Error from Superior Court, Bartow County; A. W. Fite, Judge.

Action by W. C. Conant against C. M. Jones and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Moore & Pomeroy and John T. Norris, for plaintiff in error.

John H. Wikle, Virgil Jones, and Thos. W. Milner & Son, for defendants in error.


Suit was brought by Conant against C. M. Jones and his son, Virgil Jones, for breach of contract. The petition alleged that by written contract under seal C. M. Jones had given to Conant and Virgil Jones the right, from August 23, 1901, to May 15, 1904, to enter upon certain lands, and to mine, remove, and sell any or all of the graphite deposited thereon. By the same contract the lessees undertook to pay the lessor a royalty of 10 cents per ton upon the graphite which they removed, and agreed that, "if for any cause said lessees fail to pay the lessor royalties less than the amount of $200 during either one of the years for which this lease may run, working or not, then this lease may be declared by said lessor null and void." It was further stipulated that the lessees had the right at any time during the term of the lease to cancel the same by paying the lessor $3,500, for which the lessor bound himself to make them title to all of the graphite...

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