Syllabus by the Court.
1.
There was no error in allowing the amendments, or in
overruling the demurrers to the petition as amended.
2.
The evidence was insufficient to sustain the verdict, and it
was erroneous of refuse to grant a new trial.
This
is the same case as that reported in 189 Ga. 244, 5 S.E.2d
657, where the general nature of the case is shown. On the
second trial evidence was introduced, showing the treatment
accorded F. M. Hogan and W. J. Hogan, how the farm was
managed, etc. Those portions of the evidence relating to the
existence of the contract relied on by defendants in error
and here given. As to the making of the agreement, the
evidence was as follows: 'Walt Fowler, referring to a
conversation he had had several years previously with F. M
Hogan, testified: 'After we had some water and got some
chairs, he got off on the subject of making a will to Fred
and his wife to the farm. I don't know whether it is this
place down there or not. I couldn't say exactly what it
was that was said, but they were talking about some will or
deed, and one of them asked where Fred was and the other said
he was down on the island. I don't know whether it was
the one that could walk was the one that was talking
about the will or deed or not, but the will
or deed was to be made to Fred and his wife. I have never
talked to you about this case.'
W
L. Roberts, referring to a conversation with the same party
swore: 'He said he was thinking about making a will or
deed; he talked like he had talked to Col. Martin about it,
and wanted me to witness it. He mentioned one thing in
particular, he didn't know whether to make a will or a
deed to the place; he says, sometimes a man makes a mistake
by making a deed, and he talked on about how he
liked to stay with Mrs. Hogan and Fred did, and he said he
wanted them to have the place, Mr. and Mrs. Fred Hogan. The
only question in his mind was, he didn't know whether to
will it to them or make them a deed; he says, sometimes a
fellow makes a mistake deeding things away before he dies. *
* * In that conversation with me he told me that he wanted
Mr. and Mrs. Fred Hogan to have this farm. * * * Yes, I said
that Mr. Fill said that he wanted Mr. and Mrs. Fred Hogan to
have the farm; he mentioned the farm, he called it the Durham
farm. When I was down there looking at the timber they called
that the Durham farm. That was where they lived at that time;
he (F. M.) was living at that time.'
The
testimony of Frank Garland was: 'I knew F. M. (Fill)
Hogan during his lifetime. * * * Yes, I have visited his
home, or stopped to get a drink of water. * * * While I was
there Mr. Hogan discussed some of his business with me. He
told me that he heard I had a little lawsuit, or something
like that, with reference to a will; and he asked what kind
of papers I had to my land, and I told him. As to what he
said then, he said he bought that place for Fred and his
wife; that that was the trade before they bought it and come
down there. That is what he told me. He said he was going to
give that place to Fred and Mrs. Hogan. * * * As to who he
said the trade was made with, well, he just told me that he
bought the place; that was the trade between him and Fred and
hiw wife. As to when that happened, I forget now the year,
1935 or 1936. It was over a year before he died. * * * That
was the only time he had a conversation with me. * * * Yes, I
stated that he said the trade was that they were to take care
of him as long as he lived; that was the trade before he
bought the place, that they were to take care of him. As to
whether or not that was all of the contract, he didn't
say anything more about the contract. As to whether or not
that is all he told me that they were to take care of him as
long as he lived and he would give them the place, he said he
bought it for them. He didn't say how or when he would
give it to them; he said he bought it for them.'
W.
P. Cordell testified: 'Back in 1936 I worked for D. H.
Fuller. I went over on the Hogan farm along about that time.
I saw F. M. Hogan, the old gentleman. I was cutting some land
for them with a tractor. I talked to F. M.
Hogan while I was there. * * * As to whether or not he said
anything about the buildings and farm, yes, he told me,
according to mine and Fred's contract, at my death the
place falls back to Fred. * * * He said that the contract
between him and Fred was at his death the place fell back to
Fred. Yes, that is all he said about the contract. * * * He
said, 'I think Fred and his wife are due this place, they
are so good to me.' As to whether or not he said that the
contract was between him and Fred and was not between him and
Fred and his wife, I don't remember whether he said
anything about the contract as to her or not. * * * He said
that Fred and his wife were entitled to the place, because he
said that Fred's wife was so good to him that he felt
like the place ought to fall back to him at his
death.'
C.
B. Climer testified as follows: 'I knew Mr. F. M. Hogan
during the latter part of his lifetime. I have talked to him
about the farm down there. One day I was down there buying
some cattle from him, and I said something about improving
the place, and the building of the barn; and he said, yes he
wanted to fix it up for Miss Maudie and the rest of them. * *
* The only think I heard Mr. Fill say was that he wanted to
fix the place up for Miss Maudie and the rest of them; that
is the way he spoke it. As to whether or not he said anything
about giving them the place, or anything like that: no, not
especially.'
Carl
Henderson swore: 'I lived on some land adjoining Mr. Bill
Hogan. At that time F. M. Hogan lived with Fred Hogan and his
wife. * * * I lived up there until 1930. Along about that
time (1930) Mr. Fill Hogan talked to me about buying a farm.
He said he was getting very old and not able to work and
didn't
need the farm for himself, and that he was
buying it for Fred so he and his brother, Bill, could have a
home with Fred--so he told me. * * * The only thing he told
me was that he bought the farm so he could have a home with
his brother Fred; that is all he said about it. He said he
was buying the farm so that he and his brother could have a
home; but the way he spoke it, he was buying the farm for
Fred so he could have a home with him.'
In
recalling a conversation with F. M. Hogan, Reese Ellis
testified: 'I knew Mr. F. H. Hogan during his lifetime,
Fred's uncle. As to whether or not I talked
to him down there at that time, well, I talked to Fred, and
he was along. * * * The purpose of their trip down there
where I was, was to get me to cut some land, and I arranged
to cut some land. * * * The question of who owned the farm
came up, and I later talked to Fill Hogan about whose it was;
we was down in the field and we were talking about the farm,
and I asked him who the farm belonged to, and he says,
'Well, I bought the farm myself,' but says, 'It
is Fred's farm at my death; at my death the farm will be
Fred's, provided--I think, I don't remember just how
he said it--said Fred was supposed to look after him the rest
of his life, or give him a home; something like that. He said
something about his brother, Fred's father, I think. * *
* He said he bought it where he would have a home the rest of
his days, and I don't remember how he said it, but anyway
he bought the farm where him and his brother would have a
home the rest of their days. Yes, he said what the contract
was as to who was to have the farm; he said Fred was to have
the farm at his death. * * * I think he said Fred and Maude.
* * * He just said it was going to Fred and
Maude.'
A.
N. Hopkins testified: 'I knew Mr. F. M. Hogan when I
lived down at Plainville. * * * I went to see him about
renting a crop. * * * He said he didn't have anything to
do with it, that I would have to see Fred. * * * I was there
in 1933 cooking syrup for him, and I heard Mr. Fill Hogan at
that time talking about his farm; he told me that he and Fred
had shopped all over North Georgia hunting a place to suit
Fred. * * * He said why he bought the farm; said he bought it
because it suited Fred; that he was buying to suit him. As to
whether or not he said anything about what the trade was
between him and Fred; no, he didn't say why he had bought
it for him or anything, but he just said he bought the one
that suited Fred.'
Clarence
Yarbrough testified: 'I have heard Mr. Fill Hogan talk
about the farm, what was going to be done with it; he said he
was getting up in ages and wasn't able to work, and he
went down to buy that farm, and said that he got Mr. Fred to
go with him, that he didn't have no family and at his
death he aimed for them to have the farm. As to who he meant
by 'they,' Mr. Fred and his folks, the ones that was
seeing after him. Fred's wife and daughter was seeing
after him, and sometimes he would have somebody else, some
colored girl when they could get somebody.'
W. J. Hopkins, relating a conversation with F. M
Hogan, testified: 'I says, 'Grandpa,' (I always
called him Grandpa) 'who owns this place, you or
Fred?' and he says, 'I own it,' and I says,
'Well, I didn't know; my boy was wanting to trade
about making a crop on the place;' and he says,
'Anybody that wants to make a trade of that kind with
Fred, whatever Fred does in that line is all right.' He
says, 'I have got the deed to the place, and I have got
my crippled brother and me here, and if I have got the place
at my death I aim for Fred and Maud to have it.' And one
of my boys spoke up and says, 'Why don't you make a
deed so the trade will stick?' and he says, 'I have
got two reasons: one is if...
