Opinion
32953.
DECIDED MARCH 17, 1950. REHEARING DENIED MARCH 29, 1950.
Complaint; from Dade Superior Court — Judge Paschall. September 19, 1949.
Wade H. Leonard, H. L. Barger, for plaintiffs.
Gleason Painter, for defendant.
This court will not interfere with the first grant of a new trial, even where a verdict is directed, unless the law and evidence demanded the verdict directed, which fact is not true in this case. The court did not err in granting a new trial.
DECIDED MARCH 17, 1950. REHEARING DENIED MARCH 29, 1950.
This case was transferred to this court by the Supreme Court, 206 Ga. 332 ( 57 S.E.2d 173). Mrs. Maude Cox Bostram Fuller and husband, C. N. Fuller, sued Harold C. Cox for an accounting. The petition alleged in substance: that Mrs. Fuller is the owner of a certain farm in Dade County; that C. N. Fuller, husband, and as agent for his wife, entered into an agreement with Harold C. Cox on or about January, 1942, whereby Cox agreed to look after and use the farm for the year 1942 and subsequent years; that there was no express agreement as to the amount of rent or what other moneys Cox was to pay for the use of the land but it was tentatively agreed that Cox was to pay the customary rental and the parties would go along and settle matters between themselves at their convenience; that Cox placed a tenant on the farm and has taken the landlord's share of the crops and crops otherwise produced, which have not been accounted for; that there was $250 worth of corn, hay and other farm products on the farm, a valuable work mule and a fine milch cow and farming tools and equipment, all of which the defendant used until 1947 when the plaintiff rented the farm to another person; that the only benefit the plaintiffs have received has been the payment of two or three years taxes on the farm and whatever small amount of work the defendant may have done on the farm; that the defendant wrongfully cut and sold $1,321.51 worth of saw timber; that the reasonable rental for the farm is at least $350 per year together with the products therefrom; that the defendant is indebted to the plaintiffs as follows; (1) rental on farm, use of cow, mule and tools for 4 years at $350 per year, $1,400; (2) for timber wrongfully taken, $1,321.51; (3) for three calves of plaintiffs and proceeds not accounted for, $150; (4) for hay, corn and feed for stock, $250, a grand total of $3,121.51; that under the facts and circumstances under which the defendant removed the timber the harsh rule should be applied; that the defendant be required to account for crops and amounts received and for judgment for $3,121.51 or such other sum as they may be equitably entitled to receive and for other and further relief. The defendant filed no answer.
C. N. Fuller testified as follows: "My name is C. N. Fuller. My wife and I are bringing this suit against Harold C. Cox who is the defendant. Cox lives in Dade County, Georgia. My wife, Mrs. Fuller, owns 120 acres in Dade County as shown by a deed of record in Deed Book Y page 254 of the clerk's office. I was the agent for Maude Fuller, my wife, and as such I entered into an agreement with Harold C. Cox in January, 1942, whereby Cox agreed to look after and use the farm of my wife for the year of 1942 and subsequent years. There was no express agreement about how much, or what rental or what amount of money me or my wife were to receive from Cox for the use of the farm while he had control and use thereof. It was agreed and understood that Cox was to pay the customary rental for the farm under existing circumstances and we had the further understanding that we would settle all matters between us at our convenience. Cox took charge of the farm and farming equipment and the stock and there was no tenant on the farm. Shortly after Cox took charge he placed a tenant thereon and had tenants on the farm each year thereafter up to and including the year of 1946. Cox took whatever the landlord's share of the crops were that were produced on the farm by the tenant each year and has not accounted to me or my wife for our part thereof. Cox also took what other crops he produced otherwise and used the outbuildings on the farm. At the time he took charge of the farm there was considerable amount of corn and other farm products to the value of about $250 with a mule and a milch cow and certain farming equipment and tools all of which Cox used for his own benefit during the time he had the farm in charge. He kept the farm in his control until 1947 at which time my wife rented it to another person. The only benefit we have received from the farm during the period involved has been the payment of two or three years taxes and whatever small amount of work Cox might have done on the farm. At the time Cox took charge of the farm my wife and I were living in Chattanooga, Tennessee and had no opportunity to know what was being done on the farm, except we made very infrequent visits thereto but had faith and confidence in Cox who is the brother-in-law of mine and wife's brother. We allowed him to use the farm believing that he would justly account for the profits derived from the farm and as said from the beginning. Cox during the time he had control of the farm removed and sold $1,321.51 worth of sawed timber and has not paid us any part of the proceeds of the sale. He has repeatedly refused to make settlement and account for the same. The reasonable rental value of the farm for the years involved is $350 per year under the conditions that the defendant used upon together with the products therefrom. When we decided that Cox was not going to account for the reasonable value of the crops, the use of the farm and buildings, and the use of the cow and the mule and use of the farming tools, the valuable crops including grain, hay and other feed, together with the timber wrongfully removed from the farm and sold to a one Roy Mooney. We consulted our attorney who after hearing the facts wrote Cox a letter demanding the settlement but Cox ignored the letter of our attorney. Cox is indebted to us in the following sums: 1. Rental on the farm, use of cow, mules and tools for four years at the rate of $350 per year, $1,400. 2. Timber wrongfully taken from the farm, $1,321.51. 3. Three calves, proceeds not accounted for, $150. 4. Hay, corn and feed for stock, $250. Total amount owing us is $3,121.51, and against this sum Cox is entitled to a credit of whatever sum he has paid for taxes on said farm. We are entitled to a judgment of $3,121.51, less whatever sum Cox may have spent for taxes and under the circumstances Cox removed the timber from the farm and the harsh rule should be applied. We have no record of any of the proceeds received by Cox from the farm for the time which he had control thereof; Cox has failed and refused to give an accounting of the use of the farm or to show any records during said period. The court should issue an order requiring the defendant to produce and show his records and unless he do so we will be unable to show what additional profit Cox has made from the farm during the period involved. Cox did sell three calves raised from the cow belonging to us without our knowledge or consent. The cows were worth $150. Cox took in hand the farm with the tacit understanding that he would look after the same and render an accounting when called upon to do so by us and pay the reasonable amount for the use of the farm, the tools, the animals and the products of the farm. Upon discovery that Cox had stripped a large area of our farm of valuable timber during 1945 we called upon him for account and settlement which we had done before but he made excuses saying he did not think he owed us anything. We had no other recourse except to bring the matter to the court for adjustment of principles of equity and justice."
At the conclusion of the evidence the court directed a verdict for the plaintiffs for $3,121.51. The defendant filed a motion for a new trial on the general grounds. The court granted a new trial and the plaintiffs excepted. The trial judge inserted a note preceding the certificate to the bill of exceptions, as follows: "The court before granting a new trial made an investigation as to why Harold Cox was not present when the case was called, and from this investigation became satisfied that said Cox made a trip to Birmingham prior to the time it was necessary for him to file an answer to said suit, and was assured by his and plaintiff's sister, who also lived in Birmingham together with the plaintiff's sister, that she was going to dismiss the case and not insist on a judgment, and that Cox relied on this representation and for this reason did not file an answer. This investigation further shows that Cox was serving on the grand jury in Dade County, which was in session downstairs in the Dade County courthouse at the time the verdict and judgment were rendered, and did not know of the rendition of the verdict until the following day, and that he immediately filed a motion for new trial. The court also talked with plaintiffs in this case who stated that they had no intention of withdrawing or not prosecuting the same. They further stated that they themselves and also through their attorneys had called upon the defendant for a settlement but he (defendant) ignored their request."
Code § 6-1608 provides: "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Glenn v. Tankersley, 187 Ga. 129 ( 200 S.E. 709); Townsend v. Rechsteiner, 195 Ga. 618 ( 24 S.E.2d 776). The power of a judge to grant a new trial applies to cases where verdicts are directed. Hardin Supply Co. v. Parkerson, 53 Ga. App. 342 ( 185 S.E. 591); Hunter v. Hall, 57 Ga. App. 321 ( 195 S.E. 327); Lawson v. Lawson, 61 Ga. App. 787 (1) ( 7 S.E.2d 603); Flag Fish Co. Inc. v. Mann Seafood Inc., 72 Ga. App. 484 (6) ( 34 S.E.2d 294). For the right of the defendant to except to a verdict and judgment see Ga. L. 1946, pp. 761, 777; Code, Ann. Supp., § 110-401). The court did not state in his order granting a new trial that it was not granted in the exercise of his discretion and his note in the record does not require a finding that he did not. But even if he did not exercise a discretion the evidence did not demand the verdict directed and this court, under the Code section cited and the rulings of the Supreme Court on the question, will not interfere with the first grant of a new trial. There may be other reasons why the evidence did not demand the verdict directed but several may be mentioned. A jury would not have been bound by the opinion of the witness as to the reasonable rental of the property or the value of the timber cut. There was no evidence as to how much timber was cut or the value per 1000 feet. There was no evidence that the plaintiffs were jointly entitled to recover anything, etc.
The court did not err in granting a new trial.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.