Gledhill v. Brown
| Decision Date | 11 February 1932 |
| Docket Number | 21422. |
| Citation | 162 S.E. 824,44 Ga.App. 670 |
| Parties | GLEDHILL v. BROWN et al. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Appellate court cannot set aside verdict on general ground on which trial judge in discretionary power might have set it aside (Civ. Code 1910, § § 6078, 6082, 6087).
Court of Appeals can set aside verdict only on ground that evidence did not support verdict.
Court of Appeals will not reverse first grant of new trial, unless verdict set aside by trial judge was absolutely demanded (Civ. Code 1910, § § 6082, 6087).
Appellate court's setting aside verdict adjudicates that evidence failed as matter of law to support verdict, whereas trial court's granting new trial adjudicates that verdict was not demanded as matter of law (Civ. Code 1910, § § 6078 6082, 6087).
Granting new trial did not adjudicate that same party could not prevail on same evidence at subsequent trial (Civ. Code 1910 § 6087).
Two previous new trials on same evidence as third verdict for same party was based did not amount to adjudication that such verdict approved by trial judge was, as matter of law contrary to evidence (Civ. Code 1910, § 6087).
Purchaser of timber was required to cut and remove it within reasonable time, absent specified time in contract.
What would constitute reasonable time for purchaser of timber to cut and remove it held question of fact.
Generally, to sustain accord and satisfaction of entire debt or disputed claim by giving less sum than amount claimed, bona fide dispute is essential (Civ. Code 1910, § 4326).
Rule that bona fide dispute is essentialto sustain accord and satisfaction held inapplicable when damages are unliquidated or where there is accord and satisfaction of liquidated claim by giving smaller sum with additional consideration (Civ. Code 1910, § 4326).
Creditor's surrendering note and security after expiration of time, for creditor's right under contract to remove timber from debtor's land, debtor's extending time for removing timber, held valid accord and satisfaction (Civ. Code 1910, § 4326).
Such transaction amounted to a valid accord and satisfaction either on the theory that a bona fide dispute existed between the parties as to whether the creditor's right to remove the timber had expired, or on the theory that the creditor had accepted property which he was not otherwise entitled to receive.
Instructions for verdict for defendant, unless jury thought plaintiff could recover "under all these theories," held not misleading.
Instruction was not misleading as leading jury into believing plaintiff had burden of disproving defendant's affirmative defenses, where previous instructions stated that burden rested on defendants to establish, by a preponderance of evidence, the affirmative defenses pleaded.
Error from Superior Court, Crawford County; H. A. Mathews, Judge.
Suit by A. C. Gledhill against W. Q. Brown and others. To review the judgment in favor of defendants, plaintiff brings error.
Affirmed.
L. D. Moore and R. D. Feagin, both of Macon, for plaintiff in error.
W. D. Aultman, of Byron, for defendants in error.
Syllabus OPINION.
This was a suit on a promissory note. The defendants admitted the execution of the note, and assumed the burden of proof. They pleaded, by way of affirmative defense, that the note had been paid in full by the performance of certain services for the plaintiff in sawing and hauling lumber, and by the plaintiff's having cut from the premises of the defendants sufficient timber, at the price agreed on in the contract for the sale of the timber, to cover the amount due on the note. They further pleaded that there had been an accord and satisfaction between the parties, in that, in the year 1923, after the execution of the timber sale contract in the year 1917, the plaintiff agreed to accept the timber then remaining uncut on the premises in full settlement of the obligation sued on, and that this agreement was fully executed by the plaintiff's cutting and removing the timber. It appears from the record that there had been two previous trials, each resulting in a verdict for the defendants, and that in each instance the trial judge had granted a new trial on the motion of the plaintiff. The jury for the third time found for the defendants, and the plaintiff excepts to the order overruling his motion for a new trial. Held:
1. "New trials can be granted by the superior and city courts only." Civil Code 1910, § 6078. A judge of the superior court may grant a new trial "in any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity" (Civil Code, § 6082) and may "exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of evidence." Civil Code, § 6087. The appellate courts are not vested with discretion in this regard as are the judges of the trial courts. When a case comes before the appellate court after the refusal of a new trial by the judge of the superior court, "it comes not only with the presumption in favor of the verdict of the jury, but also stamped with the approval of the presiding judge, after a consideration of the evidence and the verdict and the use of the discretionary power of review which the law confides to him as a right, and imposes upon him as a duty" (Southern Ry. Co. v. Brock, 132 Ga. 858, 862, 64 S.E. 1083, 1085, and, in considering a case in which the verdict of the jury has the approval of the trial judge, as had been repeatedly held, the appellate court is without power to set the verdict aside on the general grounds upon which the trial judge, in the exercise of the discretion vested in him, might have set it aside. This court was established to correct errors of law, and can only set a verdict aside, on evidentiary grounds, as being contrary to law, in that it lacks any evidence by which it could be supported. Thus it is the rule that the first grant of a new trial to either party will never be reversed by the appellate courts, unless the verdict set aside by the trial judge was absolutely demanded. Consequently, while an adjudication by the appellate court that a verdict, as a matter of law, is without evidence to support it, is conclusive that upon the evidence then adduced the party in whose favor the verdict was returned was not entitled to prevail, so that upon a subsequent trial a verdict in favor of the same party, and upon the same evidence, would not be authorized or allowed to stand (Stark v. Cummings, 132 Ga. 346, 63 S.E. 857), a judgment of the trial court granting a new trial, if it adjudicates anything more than that the...
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Wills, Trusts & Administration of Estates - Mary F. Radford
...grounds, as being contrary to law in that it lacks any evidence by which it could be supported.'" Id. (quoting Gledhill v. Brown, 44 Ga. App. 670, 672, 162 S.E. 824, 825 (1932)). 26. Id. at 187, 552 S.E.2d at 86. 27. Id. at 188, 552 S.E.2d at 86. The court also examined procedural claims ra......