Mims v. Jones
| Decision Date | 10 December 1910 |
| Citation | 69 S.E. 824,135 Ga. 541 |
| Parties | MIMS v. JONES et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
1. Specific Performance (§ 116 1/2*)—Pleading—Amendment.
A petition seeking specific performance and injunction may be amended, either in form or in substance, notwithstanding its allegations are sworn to; and the fact that the plaintiff has obtained a temporary restraining order on the petition prior to his offer to amend is no bar to this right.
[Ed. Note.—For other cases, see Specific Performance, Dec. Dig. § 116 1/2.*]
2. Specific Performance (§ 88*)—Pleading (§ 248*)—Contracts Enforceable—Amendment—New Cause of Action.
Where the vendor in a contract for the sale of land has only a bond for titles to the land, and the purchaser by the contract is to pay the maker of the bond, as a part of the purchase money, the whole or part of a certain debt due him by the holder of the bond, the fact that the vendor does not own the fee-simple title to the land, which fact was known to the purchaser when the contract was made, is not a good ground to defeat an action by him for specific performance. This is true, though the written contract between the parties did not disclose the fact that the vendor only had a bond for titles to the land.
(a) The original petition prayed that the defendant be required to transfer to the plaintiffs the bond for titles. An amendment to this prayer was offered and allowed, adding thereto "or that the defendant Mims be required to execute to petitioners a good and sufficient warranty deed to the land." This amendment, by which such addition was made to the prayers of the petition, was not subject to the objection that a new cause of action was thereby added.
[Ed. Note.—For other cases, see Specific Performance, Dec. Dig. § 88;* Pleading, Dec. Dig. § 248.*]
3. Specific Performance (§ 114*)—Pleading —Sufficiency of Petition.
The amendment offered by the plaintiffs was not subject to any of the objections made thereto, and the petition as amended was not subject to any of the grounds of demurrer.
[Ed. Note.—For other cases, see Specific Performance, Dec. Dig. § 114.*]
(Additional Syllabus by Editorial Staff.)
4. Evidence (§§ 208, 265*)—Estoppel (§ 3*)— Admissions in Abandoned Pleadings.
Where admissions are made in pleadings, which are withdrawn or stricken by amendment, they can be used by the opposite party on the trial as evidence, with the right of the other party to explain or disprove them; but admissions in pleadings, after they are withdrawn or stricken by amendment, cannot be used as solemn admissions in judicio, so as to work an es-toppel on the party making them to defend them.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 713-725: Dec. Dig. §§ 208, 265;2-* Estoppel, Dec. Dig. § 3.*]
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by A. J. Jones and others against H. J. Mims. Judgment for plaintiffs, and defendant brings error. Affirmed.
J. F. Golightly, for plaintiff in error.
Dorsey, Brewster, Howell & Heyman and Perry S. Pearson, for defendants in error.
The plaintiffs filed their petition, making the following allegations: The plaintiffs and the defendant entered into a contract of which the following fs a copy:
At the time the contract was made the defendant delivered to the plaintiffs, for the purpose of having an examination of the titles to the property made, a bond for titles from Willis Whipple to the defendant, a copy of which bond for titles was attached to the petition. The property referred to in the bond for titles is that referred to in the contract. At the time the contract was made the plaintiffs knew that the defendant only had a bond for titles to the property. The $4,500 loan referred to in the contract "consists of nine promissory notes set out in said bond for titles, " payable on the 1st day of January, 1910, and on the 1st of each suc ceeding January thereafter, to January 1. 1918, inclusive. The principal of the notes (exclusive of the interest included in the same) is $4,500. On June 14, 1909, the plaintiffs, after being satisfied as to the titles to the property, made to the defendant The...
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Albany Federal Sav. & Loan Ass'n v. Henderson
... ... that it was entirely without probative value. Code, §§ ... 38-1708, 38-1709; Shaw v. Jones, Newton & Co., 133 Ga ... 446(3), 66 S.E. 240. Nor, considering the entire evidence in ... the case, including the evidence as to the number and ... in favor of the defendant. Phoenix Insurance Co. v ... Gray, 113 Ga. 424(2), 38 S.E. 992; Mims v ... Jones, 135 Ga. 541(1), 69 S.E. 824; United States ... Fidelity & Guaranty Co. v. Clarke, 187 Ga. 774(3), 2 ... S.E.2d 608; Bailey v ... ...
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Williams v. Bank
...without authority. By this statement deposited in the record he is bound, perhaps not conclusively, since the plea was stricken (Mims v. Jones, 135 Ga. 541 [1], 544, 69 S. E. 824), but certainly to the extent that facts therein alleged may be taken as true in the absence of retraction and d......
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Williams v. Atlanta Nat. Bank
...without authority. By this statement deposited in the record he is bound, perhaps not conclusively, since the plea was stricken (Mims v. Jones, 135 Ga. 541 [1], 69 S.E. 824), Lydia Pinkham Co. v. Gibbs, 108 Ga. 138 [1], 33 S.E. 945; Civil Code 1910, § 5775). He has thus put into circulation......
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Norris v. Rawlings
... ... See Printup v. Patton & Jackson, 91 Ga. 422, 8 S.E. 311, et seq.; Railroad ... v. Guilford, 114 Ga. 627, 49 S.E. 794, cited in Mims ... v. Jones, 135 Ga. 541, 69 S.E. 824 ... Other ... assignments of error upon the admissibility of evidence were ... likewise ... ...