Albany Federal Sav. & Loan Ass'n v. Henderson

• Citation: 36 S.E.2d 330,200 Ga. 79
• Decision Date: 10 September 1945
• Docket Number: 15199.
• Court: Supreme Court of Georgia
• Parties: ALBANY FEDERAL SAVINGS & LOAN ASS'N v. HENDERSON et al.

36 S.E.2d 330

200 Ga. 79

ALBANY FEDERAL SAVINGS & LOAN ASS'N v. HENDERSON et al.

No. 15199.

Supreme Court of Georgia

September 10, 1945

Rehearing Denied Nov. 19, 1945. [Copyrighted Material Omitted]

Syllabus by the Court.

1. This is the second appearance of the instant case. Although the bill of exceptions assigns error upon exceptions pendente lite complaining of orders overruling demurrers to the petition, it appears that they are the same exceptions pendente lite that were sent up as part of the former record and that were considered in the former decision. The petition was amended in material respects after the reversal of the former judgment and return of the case to the trial court and there was no subsequent demurrer or renewal of demurrer to the petition as thus amended. In the circumstances, no ruling on demurrer is now presented for review; the exceptions pendente lite having spent their force, and nothing further having been urged by demurrer.

2. This being a suit in which the plaintiff sought, among other things, to recover damages of the defendant loan association for an alleged breach of a contract wherein the defendant had agreed to lend to the assignor of the plaintiff money for the purpose of making improvements and additions to property then owned by the assignor but later conveyed to the plaintiff and known as the 'Godwin Home Place,' which contract, as appeared from the evidence, was in writing, and the jury having found a verdict in favor of the plaintiff for a stated sum as damages, the complaint in the defendant's motion for new trial that the court erred in excluding 'the oral testimony of Mr. Leader [an officer of the defendant loan association] with reference to the terms of the contract prior to the time it was entered into,' even if sufficiently definite as to what particular testimony was excluded, is without merit, since it appears from the record that some of the testimony of the witness contradicted the terms of the written instrument as to material matters.

3. The construction of a contract is a question of law for the court, but the surrounding circumstances may be proved in aid of construction. Accordingly, in this case involving an agreement to lend money for the purpose of building an apartment at a location described as being on lot 56 'and the rear of No. 54,' the court did not err in admitting testimony as to the actual or geographical location of the 'rear' of lot 54.

4. The ground of the motion for a new trial, complaining because a described deed was admitted in evidence over objection, is controlled adversely to the movant by the law of the case substantially the same complaint having been made upon the former appearance of the case and the judgment as to the particular matter having been affirmed, although it was so affirmed because of abandonment of the assignment of error as to such matter.

5. In the petition as amended, the plaintiff alleged in effect that, after the defendant had furnished a part of the sum it had agreed to lend, and after the plaintiff had expended approximately $7,500 on the work according to the agreement, the defendant declined and refused to furnish the remainder to complete the additions and improvements, and 'by reason of its misconduct above alleged' damaged the plaintiff in the sum of $7,500, representing the difference in the value of material used and work done on said building and the value of said improvements to the property, and in addition thereto $5,000, representing the difference in the market value of the Godwin home on said property before construction began and after construction was stopped. The judge charged the jury that there were two items of damages claimed by the plaintiff, which would be referred to in the charge as items 1 and 2, and about which he then gave separate instructions, explaining each item and stating the measure of damages under each. Held, that the charge was not subject to the criticism that it undertook to 'segregate' the amount of the damages in a manner that was not in keeping with the pleadings or the evidence; nor was it susceptible of the construction that it did not allow consideration of the property as a whole, including all improvements, in determining issues as to value and depreciation in market value.

6. The part of the charge, submitting issues as to recovery for amounts which the plaintiff had expended for materials in partial construction of the improvements and additions before the work was stopped, could not reasonably have been understood by the jury as authorizing them to consider materials that had been purchased for such purpose, but had not been so used.

(a) Nor was the charge erroneous because it did not submit any issue as to salvage value, since any credit to which the defendant might have been entitled on that account was a matter for defense, and there was no pleading or evidence on the subject.

7. The evidence authorized the verdict in favor of the plaintiff for $8,500 as damages, and no substantial error of law having been committed, the court did not err in refusing a new trial.

On May 12, 1942, Mrs. Albert Henderson, as trustee for Albert Henderson, Jr., a minor, and as next friend for him, filed in the superior court of Dougherty County an equitable petition against Albany Federal Savings and Loan Association, and others. On March 6, 1943, Albert Henderson, Jr., having reached his majority, was made a party plaintiff in his own right. As the case now stands, the controversy is one that exists solely between Albert Henderson, Jr., and the defendant association. This is the second appearance of the case in this court. Albany Federal Savings & Loan Association v. Henderson, 198 Ga. 116, 31 S.E.2d 20. As against the association, the petition sought, among other things, to recover damages for alleged breach of a contract that defendant had made with M. A. Studstill on August 25, 1941, agreeing (it was alleged) to lend him the sum of $16,000 for the purpose of making improvements and additions to property known as the 'Godwin Home Place' in the City of Albany, which contract and the rights growing out of it, were, on April 30, 1942, transferred to Albert Henderson, Jr. In the petition as amended, the plaintiff alleged in effect that after the defendant had furnished a part of the sum it had agreed to lend, and after the plaintiff had expended approximately $7,500 on the work, according to the agreement, the defendant declined and refused to furnish the remainder to complete the additions and improvements, and 'by reason of its misconduct above alleged' damaged the plaintiff in the sum of $7,500, representing the difference in the value of material used and work done on said building in contemplation of the parties and the value of said improvements to the property, and in addition thereto $5,000, representing the difference in the market value of the Godwin home on said property before construction began and after construction was stopped; that is to say, the plaintiff alleged and claimed damages in the total sum of $12,500. As against the association, the substantial prayers of the petition as amended were: that damages caused the petitioner by reason of the wrongful acts of Albany Federal Savings and Loan Association be determined and set off against whatever amount may be found to have been advanced by it (the amount advanced having been finally agreed upon as $7,657.88 as of June 8, 1942, with interest at six per cent. per annum); that the Association be enjoined from suing on the notes referred to in the petition and from foreclosing the security deed or proceeding under any power or any other method to dispose of the property and from changing the status of the notes and security deed in any manner whatsoever; for judgment; for such other and further relief as to the court may seem meet and proper. The association filed general and special demurrers, and an answer. On March 2, 1943, the defendant presented exceptions pendente lite to an order overruling its general and special demurrers to the petition as then amended. These exceptions were certified on March 25, 1943.

The property known as the 'Godwin Home Place' was acquired by M. A. Studstill on August 25, 1941, the same day on which he entered into the loan agreement with the defendant association. On the same date, he executed a security deed to the association for $16,000, and also, by a deed of the same date, conveyed the property to Mrs. Albert Henderson, as trustee for Albert Henderson, Jr., a minor. In this deed, there was no reference to the loan contract, but, as stated above, the loan contract was later assigned to Albert Henderson, Jr., on April 30, 1942. On March 13, 1943, after the suit was filed, Studstill executed and delivered to Mrs. Albert Henderson, as trustee for Albert Henderson, Jr., a deed conveying the same property and purporting to reform the previous deed between the same parties so as to incorporate therein a transfer and assignment of the loan contract according to the agreement and understanding of the parties at the time the said original agreement was made.

The Godwin residence was situated on a tract of land in the southwest corner of Flint Street, running east and west, and Jackson Street, running north and south,--in the City of Albany. The residence faced east toward Jackson Street, while the tract of land on which it was situated, known as the Godwin lot, or home place, consisted of the northern portions of lots 50, 52, and 54, and the east half of lot 56, all, according to their form and dimensions, fronting north on Flint Street.

The loan agreement was in writing, and contemplated among other things, that certain changes and alterations would be made inside the Godwin...