Bryan v. Barnett
| Decision Date | 16 March 1949 |
| Docket Number | 16576. |
| Citation | 52 S.E.2d 613,205 Ga. 94 |
| Parties | BRYAN et al. v. BARNETT et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The verdict is supported by the evidence.
2. Where the trial judge is satisfied as to the sufficiency of the examination preliminary to the introduction of secondary evidence of a lost original, his discretion in admitting the secondary evidence will not be controlled by this court unless clearly abused.
3. Where testimony is provisionally admitted, it is the duty of counsel to later renew his objection to the admission of such evidence, if he desires to have it excluded, and upon his failure to do so, reversible error is not shown.
4. Where a ruling of the court is not clear on the admission or exclusion of testimony, it is the duty of counsel to call the matter to the court's attention and invoke a specific ruling.
5. Where a communication between an attorney and the grantor in a lease and option contract is made in the presence of the grantee, it is not a secret or private communication between attorney and client, and the attorney is a competent witness to testify in regard to the transaction on the trial of a case arising out of such transaction between the representative of the grantor and the other party.
6. Where a ground of a motion for new trial is not argued in the brief of counsel for the plaintiff in error, or in oral argument before this court, it will be treated as abandoned.
Mrs Willie Belle Bryan, as guardian of Miss Annie Martin (letters of guardianship introduced in evidence, being dated May 1948), filed an equitable petition against Mrs. Mag K. Barnett, and in substance alleged: There appears of record in the clerk's office a certain lease and option to purchase valuable real estate, with the name of Annie Martin, the ward of the petitioner, signed thereto, under date of October 22, 1947, and another instrument attempting to modify the terms of the first instrument, dated October 23, 1947, copies of the instruments being attached, marked 'Exhibit A' and 'Exhibit B.' The instruments purport to lease to the defendant certain property for a period of five years, from October 22, 1947, for $40 per month. It is provided in the lease that, in the event Miss Annie Martin should depart this life during the term of the lease, Mrs. Barnett shall have the right to purchase the property for $5500, and in the event Mrs. Barnett should depart this life during the term of the lease, it is agreed that Edward K. McMannon and wife shall have the right to rent and occupy the premises, renew the lease, and purchase the property. It is recited in the lease that a part of the purchase-price, to wit, $100, has been paid. The balance of the purchase-price is due at the expiration of the lease, or renewal, or at death.
The property is described in the petition, and alleged to be worth $25,000, as of October 22 and 23, 1947, with a rental value of $200 per month. At the time of the execution of the lease and option, Miss Annie Martin was of unsound mind, and if the instruments were executed by her, she could not understand their contents or legal import because of her mental condition. At the time of the execution of the contracts, Miss Martin was 90 years of age and infirm, and entirely incapable of comprehending the meaning of a written instrument. The defendant fully knew and fully realized this condition. On May 8, 1948, Miss Martin fell and broke her hip and is confined in the hospital at Washington, Georgia. It is necessary that she have funds with which to pay expenses, and that she receive a reasonable rental on the described property. The defendant has been paying the rent of $40 per month, whereas she should pay $200 per month. The petitioner tenders and offers to return the moneys received under the contract.
She prayed for process, that the lease and option be declared invalid and of no effect, that she have judgment against Mrs. Barnett in the sum of $160 per month from October 22, 1947, less the sum of $100 alleged to have been paid on the purchase-price of the property, and that she have judgment for $200 per month from June 1, 1948, as rental value of the property.
In their answer the defendants admitted the execution of the lease and option contracts as alleged in the petition. They denied that the rental value of the property was $200 per month, or that the sale value was $25,000, and denied that Miss Annie Martin was incapable of comprehending the meaning of a written instrument. For further plea and answer it was alleged that since the filing of the suit Miss Annie Martin had died, and the defendant, Mrs. Barnett, now has the right and authority to exercise the option, and she tenders into court the balance of the purchase price, to wit, $5400. She prayed that the option to purchase be declared valid and of full force, that the legal representative of the deceased be required to execute appropriate conveyance of the property to her, and for such other and further equitable relief as she may be entitled to in the premises.
The trial of the cause resulted in a verdict for the defendant, and judgment was entered requiring the plaintiff to convey the property to the defendant pursuant to the terms of the option agreement. The petitioner's motion for a new trial was overruled and the exception is to that judgment.
Isaac S. Peebles, Jr., of Augusta, and Stevens & Stevens, of Thomson, for plaintiffs in error.
Earle Norman, of Washington, and Robert E. Knox, of Thomson, for defendants in error.
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