Platt v. Chas-tain, (No. 17793.)

• Decision Date: 13 July 1928
• Docket Number: (No. 17793.)
• Citation: 144 S.E. 223,38 Ga.App. 454
• Parties: W. H. PLATT, Adm'r, et al. v. O. S. CHAS-TAIN.
• Court: Georgia Court of Appeals

38 Ga.App. 454

144 S.E. 223

W. H. PLATT, Adm'r, et al.

v.O. S. CHAS-TAIN.

(No. 17793.)

Court of Appeals of Georgia,

Division No. 1.

July 13, 1928.

Rehearing Granted July 24, 1928. Judgment Adhered to Aug. 10, 1928.

Error from City Court of Thomasville; H. J. MacIntyre, Judge.

Clifford E. Hay, of Thomasville, for plaintiffs in error.

J. E. Craigmiles and W. I. Maclntyre, both of Thomasville, for defendant in error.

BROYLES, C. J. 1. The former judgment of this court in this case (36 Ga. App. 581, 137 S. E. 409), that the trial court erred in over-

ruling the general demurrer to the petition, because the petition failed to allege (in an action brought by a vendor of land against the vendee for the balance of the purchase price) that the plaintiff had tendered the defendant a deed to the property, or that he was able and willing to make title on recovery of judgment and the satisfaction of the same by the defendant, was reversed by the Supreme Court on May 16, 1928, 166 Ga. 307, 143 S. E. 378. It is ordered, therefore, that the aforesaid judgment of this court be vacated, and it is now adjudged that the petition as finally amended was not subject to any of the demurrers interposed, and that the trial court properly so ruled.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

BLOODWORTH, J., concurs.

LUKE, J., dissents.

LUKE, J. I am so firmly convinced that the evidence in this case does not support the verdict that I must and do dissent from the judgment. Moreover, some of the special grounds of the motion for a new trial are not without merit.

On Rehearing.

BROYLES, C. J. After a consideration of the motion for a rehearing and the briefs thereon by counsel for both parties, and a careful reconsideration of the facts of the case and the law pertinent thereto, this court is still of the opinion that the amended petition was not subject to any of the demurrers interposed, and that the refusal of the court to grant a new trial was not error for any reason assigned.

Judgment adhered to.

BLOODWORTH, J., concurs.

LUKE, J., dissents.