Jones v. Smith

• Decision Date: 15 November 1949
• Docket Number: 16858.
• Citation: 56 S.E.2d 462,206 Ga. 162
• Parties: JONES et al. v. SMITH et al.
• Court: Georgia Supreme Court

56 S.E.2d 462

206 Ga. 162

JONES et al. v. SMITH et al.

No. 16858.

Supreme Court of Georgia

November 15, 1949

[Copyrighted Material Omitted]

M. W. Eason, Reidsville, Joseph T. Grice Glennville, for plaintiffs in error.

D L. Stanfield, Reidsville, C. L. Cowant, Glennville, T. Ross Sharpe, Lyons, for defendants in error.

Syllabus Opinion by the Court.

HAWKINS Justice.

The plaintiffs, as heirs at law of J. U. Tippins, Sr., deceased, sought the cancellation of an option made by the decedent in his lifetime to his son, J. U. Tippins, Jr., who transferred or assigned it for value to the defendant, H. P. Smith, upon the grounds of mental incapacity of the optionor, undue influence, and inadequacy of price; and sought certain injunctive relief to prevent the exercise of the option and conveyance, by the administrator of the estate of J. U. Tippins Sr., of the property covered thereby. The defendant Smith in his answer prayed for specific performance of the option. The trial court directed a verdict for the defendants, and in favor of the defendant Smith for the specific performance of the option, and entered a decree accordingly. The plaintiffs duly presented their motion for a new trial, which was amended, and to the judgment overruling the amended motion for a new trial they excepted. Held:

1. 'An option is a contract by which the owner of property agrees with another that the latter shall have the right to buy the owner's property at a fixed price, within a certain time and on agreed terms and conditions. Black v. Maddox, 104 Ga. 157, 162, 30 S.E. 723; Hughes v. Holliday, 149 Ga. 147, 99 S.E. 301.' Mattox v. West, 194 Ga. 310, 314, 21 S.E.2d 428, 431.

2. While a subsequent agreement by the optionor to extend the time within which the option may be exercised, whether made before or after the time limited for the exercise of the original option, must be supported by a valuable consideration, as such an agreement is in effect a new option, Broadwell v. Smith, 152 Ga. 161(2), 108 S.E. 609, the fact that the consideration named in the extension had not been paid would not necessarily defeat the option contract or render it less enforceable. Blount v. Lynch, 24 Ga.App. 217, 100 S.E. 644; Cobb v. Jolley, 26 Ga.App. 123, 105 S.E. 630; Mattox v. West, 194 Ga. 310, 315, 21 S.E.2d 428. 'Where a contract contains a recital of the payment of one dollar as its consideration, the contract is valid, though the sum named was not actually paid. It creates an obligation to pay that sum, which can be enforced by the other party.' Southern Bell Telephone & Telegraph Co. v. Harris, 117 Ga. 1001(2), 44 S.E. 885; Nathans v. Arkwright, 66 Ga. 179, 180.

3. Under the foregoing rulings, the written extensions of the option in this case, reciting a consideration of one dollar, receipt of which was acknowledged, cannot be held to be invalid because without consideration, although the sum named may not have been actually paid.

4. The provisions of the Code, § 38-1603, subd. 1, to the effect that the opposite party in a suit defended by an indorsee, assignee, transferee, or the personal representative of a deceased person shall not be admitted to testify in his own favor against the deceased person as to transactions or communications with such deceased persons, do not render such opposite party incompetent as a witness to give an opinion as to the mental capacity of such deceased person, based upon associations and opportunities for observation by such witness while in the home and in the presence of the deceased person. Such an opinion is not such testimony as to transactions or communications had with the deceased as should be excluded under the Code section above referred to. Cato v. Hunt, 112 Ga. 139, 37 S.E. 183; Arnold v. Freeman, 181 Ga. 654, 657, 183 S.E. 811; Myers v. Phillips, 197 Ga. 536, 29 S.E.2d 700; Watkins v. Stulb & Vorhauer, 23 Ga.App. 181, 183(8), 98 S.E. 94. Accordingly, the trial court erred in excluding the testimony of the plaintiff, Mrs. Louise Jones--that 'My father was out of his mind in the Metter Hospital and he did not know what he was talking about. Around his home, many times after he came home from the hospital, I found him out of his mind. He would not even know when he was at home or how to get back home. These occurrences took place in the last 30 to 60 days of his life'--on the following objection by counsel for the defendants: 'We object to the testimony of this witness, since she is a party to the case, and the action is brought against the assignee of the deceased, and under the rule the opposite party is not permitted to testify as to transactions with the deceased.'

5. The rulings complained of in grounds 3 and 4 of the amended motion for a new trial show no reversible error. It appears from the record that Mrs. Louise Jones did testify that the reason she had raised no objection to her brother having the option was, 'We had an understanding as to whether or not the option would be exercised,' which is substantially to the same effect as the evidence alleged to have been excluded in the 3rd ground of the amended motion. The 4th ground of the amended motion is not complete, in that it does not disclose the objection urged and upon which the testimony therein referred to was excluded by the trial court; but regardless of the objection, a statement by this witness, that 'It was the general opinion of the family that this option would never be exercised,' was purely a conclusion of the witness and was not admissible.

6. 'Value can not be established by proof that the owner of the property or his agent was offered a certain price therefor at a time and upon an occasion entirely disassociated from the transaction under consideration.' Groover v. Simmons, 161 Ga. 93, 94(6), 129 S.E. 778, 779. 'In the investigation of the value of property it is not error to exclude evidence as to what the owner would be willing to take for it.' Conant v. Jones, 120 Ga. 568(5), 48 S.E. 234, 235. In Richardson v. John Hancock Mutual Life Ins. Co., 167 Ga. 340, 145 S.E. 448, it was held that, where the question of the value of property is involved, it is error to permit a witness to testify what he would have been willing to pay for the property.

(a) Under the foregoing principals, it was error for the trial court in the instant case to admit the testimony of the witnesses, set out in the 5th ground of the amended motion for a new trial, as to the price which the owner of the land in question had offered to take for it at some time prior to his death, over the objection then and there urged, 'what the deceased offered at some time prior to his death to sell this land for, is not the method and standard for proving market value.'

7. While the Code, § 38-1605, provides: 'No attorney shall be competent or compellable to testify, for or against his client, to any matter or thing, knowledge of which he may have acquired from his client, by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney, but shall be both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner', and while under the provisions of the Code, §§ 38-418, subd. 2 and 38-419, communications between attorney and client are privileged, these provisions have no application to the competency of an attorney as a witness with respect to essential facts attending the execution of a contract in the preparation and as to the attestation of which he rendered professional service. In such a matter the attorney is not testifying 'for or against his client'. An attorney at law who witnesses a contract as a subscribing witness, and who was employed to prepare the same, is competent, in a trial involving the mental capacity of the maker thereof to execute a valid contract, to testify as a witness concerning the maker's mental condition; also as to tacts showing the latter's knowledge, or ignorance, of the contents of the paper, and as to all other pertinent facts attending the signing and attestation of the instrument. O'Brien v. Spalding, 102 Ga.

490, 31 S.E. 100, 66 Am.St.Rep....