Conant v. Jones
| Citation | 48 S.E. 234,120 Ga. 568 |
| Parties | CONANT v. JONES et al. |
| Decision Date | 13 July 1904 |
| Court | Supreme Court of Georgia |
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 upon the lands, with the right to enter the lands and mine and remove the graphite. According to the petition, Conant owned a half interest in this lease and option. Charging collusion between the two defendants, the petition alleged that C. M. Jones had, in March, 1902, sold the mineral interests in the leased lands to the Cherokee Chemical Company; that the lease and option had never been recorded, and the Cherokee Chemical Company refused to recognize its validity; that C. M. Jones at or about the same time sold a part of the land to Virgil Jones, who sold it to the Cherokee Chemical Company; that before the expiration of the first year of the lease petitioner tendered $200 as royalties to C. M. Jones, but the latter refused to accept it, though he had never attempted to forfeit or avoid the lease; that this constituted a breach of the contract, for which petitioner prayed damages in the amount of $10,000. The defendants, without admitting the contract as it was set out in the petition, pleaded a release of the contract into which they had entered with petitioner, alleging that Conant and Virgil Jones, on August 27, 1901, a few days after the execution of the contract, signed a written release, attested by two witnesses; and that the lessor had, by a written entry upon the same paper, accepted the same, and released his lessees from all liability. On the trial the plaintiff proved the execution of the contract set out in the petition. He testified that he and Virgil Jones were equally interested in the lease and option; that a short time after the execution of the contract Virgil Jones seemed to lose interest in the venture, and did nothing to further it; that plaintiff had never written or signed any release, or consented thereto, or told any one that he had done so. There was also evidence that plaintiff, through an attorney at law, had, early in August, 1902, tendered to the lessor $200 as royalties for the first year. Such tender would seem, however, to have been wholly unnecessary, as it was shown that the lessor had prior to this time sold the property and made it impossible for him to perform his contract. The defendants introduced evidence to show that, before anything was done under the lease, the lessor asked to be released, and the lessees signed a written release, attested by a notary public and another witness; that this release was sent to the lessor, and he wrote upon it an acceptance; that the original release was lost, but that the copy set out in the amended answer was correct; that Conant had acknowledged signing the release at the time of its attestation. There was also evidence as to the value of the lease and option and of the mineral interests to which they related, and evidence that the defendants had conveyed these mineral interests, together with part of the land, to other parties. The jury found for the defendants. The plaintiff moved for a new trial, and, the same being refused, he excepted, assigning error upon the refusal to grant a new trial and upon certain exceptions pendente lite which he had previously filed.
1. The plaintiff moved to strike the defendants' answer upon the ground that it was not sworn to. The court overruled the motion, and exception was taken to this ruling. The petition was not verified, the answer of the defendants did not deny the instrument sued on, and the answer was not in the nature of a dilatory plea. We are not aware of any provision of law or rule of pleading requiring the defendants to answer under oath in such case, and the motion was properly overruled.
2. There was no error in allowing the amendment to the answer, although it was not sworn to. The original answer had set up generally a release or rescission of the contract sued on. In response to a special demurrer, the amendment set out a copy of the release. It did not "set up any new facts or defense of which notice was not given by the original plea or answer," and did not come within the provisions of the act of 1897 (Acts 1897, p. 35). The amendment was germane, and was properly allowed.
3. The court did not err in refusing to strike the amended paragraph of the answer on the ground that the names of the witnesses to the release were not given. The copy was set out, with the statement that the release had been attested by two witnesses, but that they were unknown. Surely, the defendants were not to be barred of their right to plead the release because they failed to remember the names of the witnesses who attested it. Nor did the fact that the defendants were...
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