Smith v. Pilcher
| Citation | 60 S.E. 1000,130 Ga. 350 |
| Parties | SMITH v. PILCHER. |
| Decision Date | 25 March 1908 |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where upon a suit on a note for $1,000 principal, providing for interest and 10 per cent. of principal and interest and attorney's fees, given for the purchase money of a tract of land, a bond for title to which was given by the payee of the note to the maker thereof when the note was executed defendant pleaded an abatement in the purchase price, and alleged and proved that a house (estimated by the witnesses on the trial to have been worth from $125 to $400) on the land was destroyed by fire without his fault, and before he was given possession of the property, or the maturity of the note, and that before the suit was commenced he tendered $700 principal, besides interest thereon, to the plaintiff, who refused it, and defendant admitted that a notice as required by law had been given him by the plaintiff for the purpose of collecting such attorney's fees, held:
(1) No error was committed by the court in refusing to receive from the jury the following finding offered as their verdict "We find the value of the house to be $140, and find in favor of the tender"-or in requiring the jury to retire under proper instructions, to render another finding as their verdict, as the two findings returned were inconsistent, and the issues made by the pleadings and evidence were not covered thereby.
(2) When the jury offered for the second time a finding as their verdict, upon the court being reminded that he failed to charge the jury with reference to attorney's fees, there was no error in refusing to receive such finding as their verdict, which was as follows: "We, the jury, find for the plaintiff $941.30"-or in requiring the jury to retire again to render another finding, with instructions that the plaintiff would be entitled to recover 10 per cent. of principal and interest as attorney's fees if the jury found that the defendant, at the time the tender was made, owed the plaintiff more than the amount tendered.
(3) Proof of the tender refused by the plaintiff before the suit was commenced did not destroy the plaintiff's right to recover 10 per cent. of principal and interest as attorney's fees on the amount of the verdict, as the jury found that the defendant owed at the time of the tender more than the amount tendered.
(4) When testimony is offered for one party, and counsel for the opposite party states, "I do not think that is admissible," without stating any grounds of objection, he cannot complain that the court committed error in admitting the testimony.
(5) The evidence warranted the verdict, and no good reason appears for disturbing the judgment of the court below in refusing a new trial.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Tender, §§ 21-28.]
Error from Superior Court, Forsyth County; Geo. F. Gober, Judge.
Action by T. J. Pilcher against E. C. Smith. Judgment for plaintiff, and defendant brings error. Affirmed.
Brooks & Henderson, for plaintiff in error.
H. L. Patterson, for defendant in error.
Pilcher, the defendant in error, brought suit against Smith, the plaintiff in error, for the principal, interest, and attorney's fees due on a note dated August 5, 1905, due December 26, 1905, for $1,000 principal, providing for interest from maturity at the rate of 8 per cent. per annum and 10 per cent. on principal and interest as attorney's fees in case of collection by suit. Pilcher alleged in his petition that he had given to Smith a notice in writing 10 days before the suit was brought of his intention to bring the suit, and of the term of the court to which the suit would be brought, in accordance with the act of the General Assembly of Georgia approved December 12, 1900. The defendant in his answer admitted that the notice was given as alleged, and that he gave the note sued on which was for the purchase money of a certain lot of land, but alleged and proved that at the time of the execution of the note Pilcher executed and delivered to him a bond for titles in the usual form, and that prior to the delivery of possession of the property to him, the dwelling house thereon was destroyed by fire, Smith prayed for an abatement of the purchase price. Upon the trial of the case evidence was introduced by witnesses estimating the value of the house at various amounts ranging from $125 to $400. Verdict was rendered in favor of the defendant in error, and, to the order of the court overruling a motion for a new trial, the plaintiff in error filed a bill of exceptions and brings the case to this court for review.
1. Upon the trial of the case the jury returned the following finding: "We, the jury, find the value of the house to be $140, and we find in favor of the tender." The court sent the jury back to their room, and instructed them to put their finding in different form, setting out the amount they found in favor of the plaintiff, and also instructed them that, if they found the plaintiff was entitled to recover more than the amount tendered at the time of the tender, then they could not find in favor of the tender. Plaintiff in error contends that the finding was clear and certain, and alleges that the action of the court above referred to was error. Plaintiff in error upon the trial of the case pleaded and offered evidence that he tendered to the defendant in error before the suit was commenced $700 principal, and contended that, by reason of the house being burned, this was the full amount due him. The findings above referred to are inconsistent, and their meaning uncertain. In order for the finding in favor of the tender to be upheld, the amount of the principal of note would have to be reduced to the extent of $300 by reason of the burning of the house, as the amount of principal tendered was only $700. If the finding of $140 as the value of the house is to be the amount deducted from the purchase price of $1,000, the amount to be deducted would be less than the amount to be deducted if the finding was in favor of the tender. The plaintiff in error contends that the finding by the jury in favor of the tender meant that there was due the plaintiff only $700 principal, and that $300 should be deducted from the $1,000 note by reason of the burning of the house, and that the other finding that the value of the house was $140 was surplusage. We cannot agree with this contention. But, if the finding in favor of the tender was treated as surplusage, and the meaning of the jury should be construed to be that the note of $1,000 was to be credited with $140 the final verdict of the jury and the judgment rendered thereon did no substantial injury to the plaintiff in error; for if the $140 was credited on the note and a judgment rendered for the balance of the principal, interest, and attorney's fees, the amount of this judgment would be within a very small amount of the final judgment actually rendered, and the difference would now be more than met by the benefit received by the plaintiff in error from the defendant having renounced any interest on the amount of the judgment from the date of its rendition. Why should either one of the findings be ignored in preference to the other? Both cannot be given effect. They are utterly inconsistent with each other. Hall v. Spivey, 65 Ga. 693. To avoid the uncertainty as to what the jury meant, was it not proper for the court to have the jury retire and put their findings in a form that bore a certain meaning and had a certain effect? Moreover, this finding that the house was worth $140 does not cover the issue proper to be made in the case. Phinizy v....
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...at any time before it has been finally recorded and they have been discharged." 89 C.J.S. Trial § 511, p. 190; see Smith v. Pilcher, 130 Ga. 350, 354, 60 S.E. 1000 and cits.; see also Blalock v. Waldrup, 84 Ga. 145(2), 10 S.E. 622; Seaboard Air Line R. v. Randolph, 136 Ga. 505(6), 71 S.E. 8......
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...S.E.2d 661; or, after the verdict was received and recorded and the jury dispersed, he could have granted a new trial, Smith v. Pilcher, 130 Ga. 350, 355, 60 S.E. 1000; but he was without power by the decree thus to change and modify the verdict after it had been received and recorded, and ......
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