Selman v. Manis
| Decision Date | 28 September 1959 |
| Docket Number | No. 1,Nos. 37762,37776,s. 37762,1 |
| Citation | 100 Ga.App. 422,111 S.E.2d 747 |
| Parties | J. C. SELMAN v. T. W. MANIS. T. W. MANIS v. J. C. SELMAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Usually a plaintiff who moves for a new trial because the verdict is for a smaller amount than he is entitled to recover, must raise the point in a special ground of the motion for new trial, in which the precise reasons for the validity of the contention must be specially pointed out.
2, 3. In a distress warrant case proof of any defense can be appropriately raised by the simple denial of the defendant's counter-affidavit that the amount of rent claimed in the distress warrant was not due.
4. The notice to which Code, § 20-116 refers is required only where it appears that there was a mutual intention of the parties to depart from the terms of the contract.
5. It is axiomatic that the elements of a right to recover for breach of contract are the breach and resultant damages to the party who has a right to complain of the contract being broken.
6. An exception to an imperfect charge must point out where the imperfection lies.
On January 28, 1958, T. W. Manis procured the issuance of a distress warrant againt J. C. Selman for the sum of $11,972.19, which amount was later reduced by amendment to $9,650. Selman filed a counter-affidavit in the statutory form denying the 'sum distrained' for was due. The case was returned to Floyd Superior Court.
The record discloses that Manis rented a 300 acre farm to J. C. Selman in August 1954 and permitted him to move upon and occupy a part of the farm during the same month. The evidence was in sharp conflict as to every facet of the case. The plaintiff contended that he rented the defendant the entire property exclusive of his dwelling house, but including one tractor and certain equipment useful in operating a dairy farm for the sum of $4,500 per annum from November 1, 1954, and placed the defendant in possession of all parts of the rented premises that he was entitled to occupy under the terms of the contract. As to this phase of the case the defendant contended that he rented the entire farm including the dwelling house, two tractors, and the dairy and farm equipment to be in good repair or condition for the rental price of $3,500 per annum from January 1, 1955; that the plaintiff, after having admitted him into possession of the farm in August 1954, on January 1955 excluded him from the possession of the dwelling house and a tenant house occupied by one William Manis, and failed to furnish one of the tractors; that the dairy farm equipment was not in good condition. The parties each adduced evidence to support their versions of the matter in dispute, as to when the rent was to begin, whether the dwelling house and garden, the William Manis house were included in the property rented, as to whether one or two tractors were to be furnished the defendant, and as to the condition of the equipment that was furnished him. The defendant contended and submitted proof that he was damaged by the plaintiff's failure to abide by the contract and asserted the right to recoup such damages and to have them deducted from the rental price of the premises.
There was evidence pro and con as to whether the plaintiff continued, after the defendant's rental term began, to keep a large number of hogs on the farm, as to who owned the hogs, and whether they were there under an agreement between the plaintiff's son and the defendant. The evidence was definite that for a considerable time the hogs occupied a part of the pasture lands. There was considerable evidence submitted by both the plaintiff and the defendant as to the rental value of the premises, exclusive of the dwelling house, and some evidence as to the rental value of the farm without the dwelling house and the tenant house occupied by William Manis (the same houses and garden which according to the cross contentions of the parties were under the terms of the contract included or excluded from the premises). Several witnesses testified to the rental value exclusive of the dwelling house and the house in which William Manis resided. The jury returned a verdict for the plaintiff in the sum of $945. The plaintiff being dissatisfied with the amount recovered filed a motion for a new trial on the general grounds and by amendment added special grounds. The trial judge did not pass on the general grounds of the motion, but granted a new trial on grounds 2 to 12 inclusive.
To the judgment of the court granting a new trial the defendant excepted, and the plaintiff's cross-bill of exceptions assigns as error the court's failure to pass on the general grounds.
James Maddox, Rome, for plaintiff in error.
Covington, Kilpatrick & Storey, Clower & Anderson, Rome, for defendant in error.
1. The cross-bill of exceptions contains one assignment of error phrased as follows: 'To that part of the judge's order which, in effect, failed to grant a new trial based upon the original grounds of the motion for a new trial, (plaintiff, now defendant in error) then and there excepted and here and now excepts and assigns the same as error on the grounds that there was no evidence whatsoever upon which to base a verdict in the amount of only $945 in that the defendant himself, James C. Selman, expressly testified that the rental contract with the plaintiff was for a continual rental of $3,500 per year, beginning January 1, 1955; that defendant (now plaintiff in error) lived upon said rented premises until March 8, 1958, and that during the time that he was upon the rented premises he paid a total of only $3,355, whereas rent in the total amount of $11,083.30 minimum have accrued during said period, leaving a balance due, or a total balance due of $7,728.32, less any amount that the jury might have seen fit to have deducted therefrom for the reasonable rental value of the T. W. Manis house and garden, the highest reasonable rental figure about which any witness testified was $75 per month, or for a total rental of 38 months a total figure of $2,850, which, when subtracted from the $7,728.32 would leave a net balance of $4,878.32 a figure more than four times in excess of the amount awarded by the jury.'
The record discloses that the only defense interposed by the defendant was not that the rental price of the premises was not $4,500 but $3,500 per annum, but that the defendant sought to recoup against the rental price of the premises various items of damages that he contended accrued to him by reason of plaintiff's breaches of the rental contract.
The grant of a new trial on grounds specified in the judge's order in effect overrules others not passed on, which omission on the part of the trial judge may be assigned as error in cross-bill of exceptions filed by the movants. Allen v. Schweigert, 113 Ga. 69, 38 S.E. 397; Nicholas v. Tanner, 117 Ga. 223(1), 43 S.E. 489.
There is no question that a plaintiff may move for a new trial on the ground that a verdict in his favor is for a smaller amount than that demanded by the evidence. Hankin Music Co. v. Deaton, 62 Ga.App. 599, 9 S.E.2d 121.
There is, however, authority for the view that a plaintiff who moves for a new trial because the verdict is for a smaller amount than he is entitled to recover, must raise the point in a special ground of the motion for new trial, in which the precise reasons for the validity of the contention must be specially pointed out. Brown v. City of Atlanta, 66 Ga. 71(1) holds:
In this case there was not a special ground of the motion for new trial complaining of the inadequacy of the verdict. The astute counsel for the plaintiff undertook to remedy this deficiency in the motion for new trial by the special assignment of error contained in the cross-bill of exceptions. The distinction between general and special exceptions is found in Ansley v. Atlantic Coast Line R. Co., 86 Ga.App. 152, 71 S.E.2d 434, that a general assignment alleges without specifically designating the reason for the conclusion that the verdict is contrary to law or without evidence to support it, while a special assignment of error points out the reasons for the assertion that the verdict is contrary to law or not supported by evidence. According to Shipley v. Eiswald, 54 Ga. 520(1) the question of the size of the verdict not having been properly raised by motion for new trial, can not be brought to this court's attention by bill of exceptions. Similar holdings are found in Barnes v. Kittrell, 55 Ga.App. 319, 190 S.E. 39; McFarland v. Bradley, 82 Ga.App. 223, 60 S.E.2d 498.
The ruling of the Shipley case is the general rule that the appellate courts are, except as to matters of appellate procedure, without jurisdiction to pass upon a question concerning which the ruling of the trial court was not invoked. American Grocery Co. v. Kennedy, 100 Ga. 462, 465, 28 S.E. 241; Barham v. Weems, 129 Ga. 704(3), 59 S.E. 803.
The holding of Brown v. City of Atlanta, 66 Ga. 71, supra, that the inadequacy of the verdict must be raised by a special ground of amended motion for new trial is applicable where the plaintiff sued on an unliquidated demand or upon a liquidated demand, and the defendant by way of set-off or recoupment asserts the right to have deductions made from the amount of the plaintiff's liquidated demand or unliquidated demand. For instance where the plaintiff sues for damages on account of a personal injury, or where the plaintiff sues for an amount fixed by a contract entered into with the defendant and the defendant pleads recoupment of unliquidated damages that he claimed...
To continue reading
Request your trial
-
Mills v. Norfolk Southern Ry. Co.
...on the part of the trial judge may be assigned as error in a cross-[appeal] filed by the movants. [Cits.]" Selman v. Manis, 100 Ga.App. 422, 425(1), 111 S.E.2d 747 (1959). See also Allen v. Schweigert, 113 Ga. 69, 74(4), 38 S.E. 397 (1901). The grant of a new trial in effect overruled the g......
-
DeKalb County v. Queen
...v. DeKalb County, 126 Ga.App. 101(2), 189 S.E.2d 915; Noble v. State Hwy. Dept., 117 Ga.App. 33(2), 159 S.E.2d 715; Selman v. Manis, 100 Ga.App. 423(3), 111 S.E.2d 747; Levsey v. County of Walton, 47 Ga.App. 211, 212, 170 S.E. 268; Cf. Williams v. Colonial Pipeline Co., 110 Ga.App. 824, 140......
-
Graham Bros.' Const. Co., Inc. v. C. W. Matthews Contracting Co., Inc., 62062
...the breach and the resultant damages to the party who has the right to complain about the contract being broken. See Selman v. Manis, 100 Ga.App. 422(5), 111 S.E.2d 747. The court thereafter charged that of course it was up to the jury to decide under the evidence and law given as to whethe......
-
Darien Bank v. Miller
...by the evidence so that the trial court's ruling is specifically invoked upon the questions presented on appeal. Selman v. Manis, 100 Ga.App. 422, 425-427, 111 S.E.2d 747 (1959). The record does not reflect that the specific arguments made on appeal in support of the bank's claim were addre......