Malsby v. Young

• Decision Date: 13 April 1898
• Parties: MALSBY et al. v. YOUNG et al. YOUNG et al. v. MALSBY et al.
• Court: Georgia Supreme Court

30 S.E. 854

104 Ga. 205

MALSBY et al. v. YOUNG et al.

YOUNG et al. v. MALSBY et al.

Supreme Court of Georgia

April 13, 1898

Syllabus by the Court.

1. Where a term order which provided for the hearing of a motion for a new trial in vacation allowed the movant until the hearing "to make out and present a brief of the evidence for the approval of the court," it was within the power of the judge, at or before the hearing, to approve the brief of evidence, and order it to be filed; and where, under such order, the motion was set for a hearing in vacation in a county other than that in which the case was tried, and on the day before the hearing the judge approved the brief of evidence and passed an order directing it to be filed, it was proper, when the motion came on to be heard upon its merits to treat the brief as having been duly filed, the judge's action thereon being, under the circumstances, the legal equivalent of an entry of filing upon the brief by the clerk.

2. On the trial of an action of trover, in which the defendants had filed an equitable answer wherein, by way of cross action they prayed for affirmative relief, to which their allegations, if true, entitled them, it would not have been proper to charge, without qualification, the law embraced in section 5335 of the Civil Code, giving to the plaintiff in an action of trover a right of election as to the form of the verdict.

3. Where a contract gives to the purchasers of personalty sold to them under an express warranty the right, upon compliance with specified conditions, to return the same to the sellers by delivery at a designated place free of freight charges, a mere notice to the latter that the property is held subject to their order is not a compliance with the terms of the contract, and should not, in instructions to the jury, be treated as a proper offer to return, or as a suitable "tender" of the property.

4. The law of implied warranty in the sale of personalty has no application to a case where the property was sold under a contract of express warranty, the terms of which explicitly define the warranty actually made.

5. Where, under a contract of purchase, the vendees are allowed a specified time in which to discover defects, and they, by contract, bind themselves to report immediately thereafter to the sellers all defects so discovered, it is not, in a controversy between the parties subsequently arising, proper for the court, in its instructions to the jury, to treat the contract as allowing the vendees an indefinite period in which to discover and complain of such defects, there being evidence to show they had full opportunity to do so within the time limited, and also to warrant a finding that they had waived the defects they sought to prove at the trial. The above is true though the vendees in such pleadings, in general terms, alleged that the sellers had perpetrated a fraud upon them by falsely representing the qualities of the property sold.

6. Some of the charges complained of were not warranted by the evidence; others of them were not accurately adjusted to the issues involved or appropriate, in view of the terms of the instrument expressing the contract between the parties. The ends of justice require a new trial.

Error from superior court, Habersham county; J. J. Kimsey, Judge.

Bail trover by Malsby & Avery against J. B. Young and others. There was a judgment for defendants and an order denying a new trial, and plaintiffs bring error. Defendants bring cross exceptions to the refusal to dismiss the motion for a new trial. Reversed on main bill, and affirmed on cross bill.

W. L. Telford, J. C. Edwards, and W. I. Pike, for plaintiffs in error.

Geo. P. Erwin, H. H. Perry, and Dean & Hobbs, for defendants in error.

LITTLE J.

There was an original and also a cross bill of exceptions argued here together, and will each be disposed of in this opinion. A verdict and judgment were rendered in the court below against Malsby & Avery, a motion for a new trial made by them was overruled, and to a judgment refusing to grant a new trial that firm sued out a writ of error to this court. On the hearing of the motion in the court below, the following facts appeared: The case was tried at the September term, 1896, of Habersham superior court, and a verdict rendered, which Malsby & Avery moved to set aside, and asked that a new trial be granted. At that term movants, by proper order, were granted time to make out and present a brief of the evidence, and the hearing of the motion was continued until the January term, 1897, of Hall superior court, no brief of evidence being filed at the term at which the case was tried. During the January term, 1897, of Hall superior court, the movants presented to the court a brief of the evidence, which the judge approved, and ordered filed as a part of the record. On the day after the approval, which was the last day of that term of Hall superior court, the motion for a new trial was called for a hearing, and the respondents moved to dismiss it, making, in brief, two grounds of complaint, namely, that no brief of the evidence of any character had been filed in Habersham superior court at the term when the motion for a new trial was made, and that the brief of evidence approved and ordered filed by the judge had in fact never been filed in the office of the clerk of Habersham superior court. The motion to dismiss was overruled, and the respondents filed their bill of exceptions, alleging error in refusing to dismiss the motion for a new trial, which assignment of error is the basis of the cross bill in the case.

1. To the point that no brief of evidence was filed in Habersham superior court during the term at which the motion for a new trial was made, it is sufficient to say that an order was taken giving the movants until some time during the January term, 1897, of Hall superior court, which was in the same judicial circuit, in which to make out and present a brief of the evidence to the judge for his approval, and this order was consented to by the respondents. The effect of such order was to obviate the legal necessity of presenting the brief at the term at which the case was tried, and there was, after the grant of the order, no legal duty on the part of the movants to present the brief until...