Alexander Hamilton Institute v. Van Landingham

• Decision Date: 18 January 1932
• Docket Number: 21559.
• Citation: 162 S.E. 304,44 Ga.App. 606
• Parties: ALEXANDER HAMILTON INSTITUTE v. VAN LANDINGHAM.
• Court: Georgia Court of Appeals

162 S.E. 304

44 Ga.App. 606

ALEXANDER HAMILTON INSTITUTE v. VAN LANDINGHAM.

No. 21559.

Court of Appeals of Georgia, Second Division

January 18, 1932

Syllabus OPINION.

Party will not be permitted to disprove admission made in pleadings without withdrawing admission from record.

Verdict for plaintiff held demanded as matter of law notwithstanding plaintiff's introduction of testimony not corresponding to pleadings, where defendant by answer admitted allegations of petition, and failed to introduce proof supporting affirmative defense.

Defendant who failed to object to admission of testimony waives objection to admissibility thereof under pleadings.

In plaintiff's error proceedings, cross-bill of exceptions is necessary to review court's ruling striking portions of defendant's plea on demurrer.

Error from City Court of Cairo; J. Q. Smith, Judge.

Action by the Alexander Hamilton Institute against R. R. Van Landingham. There was a verdict for plaintiff, the trial court granted defendant's motion for new trial, and plaintiff brings error.

Reversed.

G. L Worthy, of Cairo, for plaintiff in error.

W. H Duckworth, of Cairo, for defendant in error.

JENKINS P.J.

This was a suit expressly based on a contract in writing whereby the defendant enrolled with the plaintiff for a "Modern Business Course" and service, extending over a period of two years, the course including, among other things, the furnishing by the plaintiff of twenty-four bound volumes of "Modern Business Text" and certain reading matter to be thereafter forwarded to the defendant by the plaintiff institute. The contract contained an express promise by the defendant to pay the sum of $210 "in consideration for my enrolment for the above course and service," and provided that it should not be subject to revocation. A copy of the contract sued on was attached to the petition, which alleged that the plaintiff had complied with its obligations thereunder. The defendant, by his answer, specifically admitted each and every allegation of the petition, and sought to set up several grounds of affirmative defense. On the trial, all of the defendant's answer was stricken on demurrer, except that portion of the plea which set up a rescission of the contract. The defendant introduced no evidence. The plaintiff showed by evidence, introduced without objection, that, although the contract had not been actually fully performed, there had been a partial performance thereof, accompanied by a continuing offer of full performance, and offered testimony to show a breach on the part of the defendant such as had prevented full performance.

There was evidence going to show that the books referred to had been delivered to the defendant, who afterwards returned them to the plaintiff with the statement that the course was worthless. The plaintiff notified the defendant that it was holding the books subject to the defendant's orders, and that the other literature embracing the course of instruction was discontinued because the defendant no longer permitted its delivery through the mails. Both parties moved for a directed verdict, the defendant on the ground that the case had not been proved as laid, and that the plaintiff had not shown compliance with the provisions of the Civil Code 1910 § 4131, clause 3,...