Sherling v. Continental Trust Co.
| Decision Date | 14 September 1932 |
| Docket Number | 8654. |
| Parties | SHERLING et al. v. CONTINENTAL TRUST CO. et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Sept. 23, 1932.
Syllabus by the Court.
Amendment of petition to meet demurrer waived exception to ruling sustaining demurrer.
In suit for specific performance of testator's oral contract to leave property, testimony that witness had not heard husband involved in contract, refer thereto held incompetent, since in nature of hearsay.
In suit for specific performance of testator's oral contract to leave property, testimony that testator never mentioned contract to witness held irrelevant.
In suit for specific performance of oral contract to leave property testimony that plaintiff had never mentioned contract in witness' presence held irrelevant.
In suit for specific performance of testator's contract to leave property, evidence that testator's general reputation for honesty was good, there being no attack thereon involving testator's character, held irrelevant.
In suit for specific performance of testator's oral contract to leave property, testimony that testator was methodical held irrelevant.
In suit for specific performance of testator's contract to leave property, testimony that testator's reputation for fulfilling obligations was good held irrelevant.
In suit for specific performance of testator's parol contract to leave property, paper containing purported will of testator apparently not probated, held immaterial.
Contract to leave property held not invalid as restraining marriage.
In suit for specific performance of testator's parol agreement to leave property, in return for certain acts by plaintiff and plaintiff's sister, accepted performance by plaintiff authorized plaintiff's recovery, notwithstanding sister's nonperformance.
1. The court having sustained the demurrer urged by the defendants to the petition, the plaintiffs amended so as to meet the demurrer, and filed their exceptions pendente lite to the ruling of the court sustaining the demurrer. In view of the fact that the plaintiffs submitted to the ruling of the court upon the demurrer and filed an amendment to meet that demurrer and prevent the dismissal of the suit, they cannot now insist upon the assignment of error made in the pendente lite bill of exceptions. If they had desired to stand upon the pleadings as filed, they should have refused to amend. The amendment under these circumstances consents to the ruling of the court.
2. The court erred in overruling the motion of plaintiff's counsel to exclude that portion of the testimony set forth in ground 1 of the motion, by which it was sought to show that Mrs. Sherling and the plaintiff in error had brought no suit against the Holst estate. The testimony was irrelevant, and the court should have excluded it upon motion.
3. For the same reason the court should have excluded from evidence a paper offered by the defendant, purporting to be the last will and testament of H. C. Holst. Neither Holst nor his representative was a party to the instant case, and the suit did not set up or attempt to enforce any agreement made by Holst with movants, and the testimony was not relevant to the issue in this case.
4. Likewise it was error to admit a paper offered by the defendant, which purported to be a letter written by a third party to Dominick Burns, and which one of the witnesses had testified was in the handwriting of Holst. This evidence was irrelevant, and the jury might have drawn conclusions from it harmful to the plaintiffs, and the paper should have been excluded.
5. The testimony of the witness G. E. Cunningham and of the witness C. F. Stewart, introduced by the defendant, set forth in the fourth and fifth grounds, respectively, of the motion, is also irrelevant, and should have been excluded upon motion of counsel for plaintiffs.
6. The testimony of Mrs. H. Clay Holst, in effect, that she had not heard Mr. Holst make any statement in reference to his or Burns having made a contract with Mrs. Sherling or Mrs Beall, should have been ruled out. It is in the nature of hearsay testimony, and no circumstances are testified to as transpiring which required Holst to make any statement either admitting or denying the existence of such a contract. And this ruling is applicable also to the evidence set forth in the eighth and ninth grounds of the motion.
7. A witness for the defendant was permitted to testify that Dominick Burns never said anything to her about a contract with Mrs. Sherling and Mrs. Beall. This evidence should have been excluded, upon motion of the plaintiffs' counsel, on the ground that it was irrelevant and immaterial, and no circumstances were shown requiring Burns to make any statement about the contract referred to or to admit or deny the making of the same. If he had denied to the witness making such a contract, it would have been objectionable as hearsay testimony.
8. Likewise it was incompetent to prove by the witness last referred to that Mrs. Sherling had never said anything in the presence of the witness in reference to a contract of Burns to leave her any property.
9. It was not competent for the defendant to introduce evidence to show Burns' general reputation for honesty and integrity, and to show that that reputation was good. There was no such attack upon Burns' reputation for honesty and integrity as involved his character.
10. The testimony of a witness for the defendant that he had had business dealings with Burns, that Burns made records of contracts between himself and witness, and that "hewas very methodical in all business he had with me; if he paid money, he wanted a receipt for it, and he was very careful in all his transactions of all kinds that involved dollars and cents," was irrelevant to the issues made in this case, and should have been excluded.
11. Likewise the testimony of a witness for the defendant that Burns' reputation in the community in which he lived "for the keeping of the obligations he made" was good should have been excluded upon objection. And the same ruling is applicable to the evidence as to Burns' reputation as to honesty and integrity.
12. Likewise the testimony set forth in the seventeenth ground of the motion should have been excluded.
13. The paper containing what purported to be a will of Dominick Burns, dated May 14, 1912, which did not appear to have been probated, should have been excluded when offered in evidence, as it was not material to the issues of this case. It could be no more than a self-serving declaration, if it had any weight at all.
14. The contract involved in this case, and of which specific performance is sought, is not invalid or void on the ground that it is a contract in restraint of marriage.
15. The charge of the court as to the quantum of proof of the contract and its performance, which is excepted to, is substantially correct.
16. If A proposes to B and C that, if B and C will sign papers so conveying their individual property, it will become part of a common estate in which all the brothers and sisters of A and B and C will share, A will upon his death leave half of his property to B and his children, and the other half to C and his children, and B actually executes a deed conveying his property into the common estate contemplated, and it is delivered and accepted both by A and the other brothers and sisters of B, in that event B is entitled to have specific performance on the part of A, even though C should have failed to meet the proposition of A. Even if the contract as proved showsthat, when A made his proposition, he intended that both B and C should sign conveyances of their individual property, placing the title thereto in a common estate, so that his proposition was one to B and C jointly, nevertheless if B acted upon the proposition, accepted it so far as he was concerned, executed and delivered papers conveying into the common estate his individual property, and this conveyance was accepted and acted upon by A and the others interested in the common estate, B would be entitled to specific performance of A's contract so far as related to him.
Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.
Suit by E. H. Sherling and others against the Continental Trust Company, executor, and others. Judgment for defendants, plaintiffs' motion for a new trial was overruled, and they bring error.
Reversed.
Ryals, Anderson & Anderson, of Macon, for plaintiffs in error.
Jones, Jones, Johnston & Russell, Harris, Harris & Popper, and Jackson & Jackson, all of Macon, for defendants in error.
Mrs Eliza Sherling and her children as joint plaintiffs, brought their suit against Continental Trust Company as executor of the last will and testament of Dominick Burns, seeking specific performance of an agreement alleged to have been made with Mrs. Sherling by Burns, during the latter's lifetime, to leave one-half of all the property that he might leave at his death to Mrs. Sherling and her children. It was alleged in the petition that shortly prior to November 2, 1897, Mrs. Bridget Gray, having been previously married to three different husbands, to wit, Patrick Burns, H. Clay Holst, and T. A. Gray, respectively, died, leaving surviving her the following children, to wit: Dominick Burns, Mrs. Mary Burns Cunningham, and Mrs. Bridget Burns Stewart, the children of Patrick Burns; H. Clay Holst, the son and only child of H. Clay Holst, Sr.; and Mrs. Delia Gray Beall and Mrs. Eliza H. Sherling, the only children of T. A. Gray; and that during the course of her three covertures she had accumulated a considerable estate, consisting principally of lots and parcels of land with...
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