Opinion
35939.
DECIDED JANUARY 19, 1956. REHEARING DENIED FEBRUARY 28, 1956.
Damages. Before Judge Perryman. Wilkes Superior Court. July 25, 1955.
Hardin Lynn, for plaintiff in error.
Earle Norman, Knox Neal, contra.
1. The allowance or disallowance of an amendment to the pleadings is not a proper ground for a motion for a new trial.
2. When a person receives and retains the proceeds of a sale he is thereby estopped to deny its validity.
3. The general grounds of the motion for a new trial and the motion for judgment notwithstanding the verdict are without merit.
4. Any errors in the judge's charge were harmless in view of the verdict being demanded by the evidence.
5. The trial judge did not err in overruling special grounds 9, 10 and 11 of the amended motion for a new trial.
DECIDED JANUARY 19, 1956 — REHEARING DENIED FEBRUARY 28, 1956.
Walton Hardin instituted in the Superior Court of Wilkes County, a suit against James L. McAvoy, a resident of Wilkes County, and Knox Corporation, the principal office of which was located in McDuffie County.
The petition alleged: That Henry Grady Hardin formerly owned an undivided one-half fee-simple interest in 125 acres of land situated in Wilkes County, said lands having been devised to him by the will of P. D. Hardin, deceased. A copy of the will was attached to the petition, and a description of the land was fully set forth. That prior to the bringing of the suit, Henry Grady Hardin had by conveyances both dated May 4th, 1953, conveyed to the plaintiff all of his right, title, and interest in the lands, together with all causes of action that had previously accrued to Henry Grady Hardin arising out of or connected with his ownership of the lands. The conveyances, regular in form, were also attached to the petition. The petition contained identical allegations in reference to another 100-acre tract of land. The petition further related that while the plaintiff's grantor and assignor held titles to the lands, that the defendants wrongfully entered upon the described lands, cut, removed and converted to their own use a large amount of described timber of the fair market value of $24,000. The petition prayed recovery from the defendants in that amount.
The defendants filed their answer within the time prescribed by law. The answer neither admitted nor denied that the title to the lands from which the timber was cut and removed was originally vested in the plaintiff's father, Henry Grady Hardin, or that the plaintiff prior to the filing of the suit succeeded to his rights in the timber and any right he had to recover for its conversion. The answer denied that the timber was wrongfully converted by them, that they wilfully cut and removed it, without legal authority and denied the timber was of the value alleged in the petition. There was no denial by the defendants that they had cut and removed the timber.
Thereafter on the 7th day of February, 1955, the defendants filed an amendment to the answer setting up the following facts: that the plaintiff, for himself individually and as assignee of Henry Grady Hardin, filed a claim against the estate of W. A. Hardin, Sr., in the amount of $1,800 for timber allegedly cut and sold during the spring of 1951 by W. A. Hardin, Sr., from the tracts of land described in the petition; that the claim included all timber which was cut from the lands between December 19th, 1950, and May 15th, 1951; that on June 4th, 1951, the plaintiff was paid $500 on the claim by John D. Hardin, administrator of the estate of W. A. Hardin, Sr.; that the said sum was paid out of the funds belonging to the estate of W. A. Hardin, Sr.; that on the 7th day of August, 1954, and since the date that the defendants had filed their defensive pleadings in the case, the plaintiff was by the administrator of W. A. Hardin's estate paid $1,300 in full settlement of the said claim, and by accepting the payment plaintiff released and discharged the estate of W. A. Hardin, Sr., from all claims which plaintiff individually, and as assignee of Henry Grady Hardin had against the estate of W. A. Hardin, Sr.; that the said claim for which plaintiff accepted payment included all claims for timber allegedly cut by the defendants and that the defendants pleaded the payment made by the estate of W. A. Hardin, Sr., as a bar to the suit filed against them. The amendment contained a final paragraph reading: "As a further defense these defendants aver that by filing said claim against the estate of the said W. A. Hardin and accepting payment therefor from said estate and receiving the benefits of said timber contract, plaintiff has for himself and his assignor ratified and confirmed the sale of said timber made by the said W. A. Hardin, acting by and through his attorneys in fact, Marion C. Cofer, to the defendant, Knox Corporation, and that by virtue of said acts he is as a matter of law estopped both individually and as assignee of Henry Grady Hardin to complain of the alleged wrongful cutting of said timber."
The sole issue submitted to the jury was that made by the amendment which set forth the defendant's plea in bar, namely whether by any of the facts alleged in the amendment the plaintiff was debarred from his right to recover for the conversion of the timber. The facts developed from the proof offered by both the plaintiff and the defendants were substantially as follows: William A. Hardin, Sr., was a tenant in common with the plaintiff and his father, Henry Grady Hardin, in the tract of land and timber described in the petition. The three parties named each acquired his interest in the lands and timber standing upon the same by virtue of the will of P. D. Hardin, who was the father of W. A. Hardin and Henry Grady Hardin and the grandfather of the plaintiff. Without joining either of them in the conveyance, without their authority or consent acting through his attorney in fact, the defendant McAvoy, deeded to Knox Corporation, the other defendant, the timber described in the petition. He alone received the consideration for the timber. After W. A. Hardin's death on May 31, 1951, the plaintiff, Walton Hardin, filed in the County Court of St. Johns County, Florida, where W. A. Hardin resided at the time of his death, a claim in the form of a petition for a sum of money representing the proportionate share of the plaintiff in the funds derived from the sale, minus $500 which the petition reiterated had already been paid him by the administrator of W. A. Hardin, Sr. The petition prayed that John D. Hardin, the administrator of W. A. Hardin, Sr., be authorized by the court to pay to the plaintiff from the funds of the estate the amount before mentioned, which was $1,300.
The court passed an order on November 21, 1952, authorizing the administrator to pay the $1,300 to the plaintiff as prayed. The order was not at that time complied with. On May 4, 1953, Henry Grady Hardin by deed conveyed to the plaintiff all his right, title and interest in the lands and all rights of action that had or thereafter might accrue by reason of ownership of the lands. Thereafter on May 11, 1954, the plaintiff filed another petition in the County Court of St. Johns County, Florida, suggesting the removal of John D. Hardin as the administrator of the W. A. Hardin, Sr., estate. In the petition, among other things, the filing of the former petition and the rendition of the former order of the court were alleged. To the petition the plaintiff attached the two deeds executed by Henry Grady Hardin to which reference has previously been made in this statement of facts. Thereafter on July 13, 1954, John D. Hardin acting in his capacity as administrator of W. A. Hardin paid the plaintiff $1,300 by a check on which appeared the notation "Payment in full of claim of Walton Hardin as filed in estate of W. A. Hardin, deceased." The check was paid by the bank on July 29, 1954.
The money payment was accepted by Walton Hardin who was at the time conversant with the manner in which the sale of the timber had been made, of the approximate amount of the consideration for the timber paid by the Knox Corporation to W. A. Hardin, Sr., and of his interest in the timber both under the will of his grandfather, P. D. Hardin, and the conveyances made to him by his father, Henry Grady Hardin.
There was some evidence, though not of a very convincing nature, that the payments to the plaintiff were in full settlement not only of his interest in the timber willed to him by his grandfather, but also of his interest acquired by the deeds from his father. The plaintiff testified to the contrary, and the documentary proof offered in the case, consisting of the petitions filed in the County Court of St. Johns County, Florida, and the order of that court corroborated his testimony. He did admit, however, in the course of the examination that, at the time he received the $500 payment and when he filed the original claim, he believed his father was dead, not having seen or heard from him for many years, and that he was not aware of any other heirs at law of his father, if he had in fact been dead.
On the trial of the case the jury rendered a verdict for the defendants. The plaintiff filed a motion for a new trial and a motion for a judgment notwithstanding the verdict, which motions were denied. The plaintiff excepted to these rulings and the case is here for review.
1. The first question for consideration is the plaintiff's insistence that the amendment to the defendants' answer setting up a plea in bar in the nature of a plea puis darrein continuance was filed too late.
If the plea did come too late the verdict sustaining it should be set aside, provided the point was properly raised in the trial court, and exception was taken to the judge's ruling allowing the amendment, and overruling the motion to strike it in such manner that these rulings may be reviewed by this court.
The record does not disclose that any objection was interposed to the amendment at the time it was offered and allowed. The record shows that at the conclusion of evidence, the plaintiff did move to strike the amendment, but the record does not disclose upon what ground the motion was made. In order for the motion to have been entertained by the trial judge it was necessary that the judge be informed by the motion itself of the reasons why the amendment should be stricken. It follows that the motion to strike, which was the only objection to the amendment to be found in the record, did not sufficiently raise the question as to the timeliness of the plea embodied in the amendment. But had the motion itself been perfect and properly invoked the ruling of the trial judge as to timeliness of the amendment, this court would still not be privileged to review that ruling, because the bill of exceptions did not assign such ruling as error. It is true several grounds of the plaintiff's motion for new trial did complain that the amendment was allowed and the motion to strike it denied. In Brown v. Brown, 89 Ga. App. 428 (4a) ( 80 S.E.2d 2) this court held: "The allowance or disallowance of an amendment to pleadings is not a proper ground of a motion for new trial."
The bill of exceptions does contain an assignment of error that the court denied the plaintiff's motion for judgment notwithstanding the verdict, one of the grounds of which complained that the trial judge erred in allowing the amendment filed, without giving the plaintiff an opportunity to object to it and be heard on the law relative to the nature of the plea it presented.
Pretermitting discussion of whether and under what circumstances a motion for judgment notwithstanding the verdict is the appropriate way to challenge the sufficiency of pleadings, clearly this particular ground of the motion referred to was without merit. This is true because the amendment was allowed and ordered filed subject to objection and demurrer, and the motion does not disclose that the plaintiff was not then allowed ample opportunity both to object and demur to the pleadings, or was not permitted then to thoroughly inform the trial judge of his legal position.
2. The defendants' contention contained in their plea presented by way of amendment to the answer that the plaintiff by accepting a part of the proceeds of the sale so ratified the act of W. A. Hardin, Sr., as to make him the plaintiff's agent in selling the timber was not sustained by the evidence, for the reason that W. A. Hardin did not purport to act for, or on behalf of, the plaintiff in that transaction. Morgan v. Georgia Paving Const. Co., 40 Ga. App. 335 (4) ( 149 S.E. 426).
However the competent evidence introduced both by the plaintiff and the defendants established beyond question that after the plaintiff acquired his father's interest in the timber and his right growing out of it having been wrongfully sold by W. A. Hardin, Sr., to the Knox Corporation and when the plaintiff was fully apprised of the circumstances under which the sale was made, the illegal assumption by W. A. Hardin, Sr., of the right to sell the timber, and of his own right to repudiate the sale and recover of Knox Corporation the value both of his original interest and the interest in the timber and that acquired from his father, he accepted from the estate of W. A. Hardin, Sr., a portion of the purchase price of the timber.
The result was, as contended by the defendants in the plea set up by amendment to the answer, that the plaintiff having received and retained the fruits of the sale was estopped to deny its validity. It thus becomes apparent that the evidence not only authorized, but demanded the verdict in the defendants' favor. Chapman v. Commercial National Bank, 86 Ga. App. 178 ( 71 S.E.2d 109); Parks v. Williams, 137 Ga. 578 ( 73 S.E. 829); Tribble v. Anderson, 63 Ga. 31; Hicks v. Webb, 127 Ga. 170 ( 56 S.E. 307); Roney v. Tutt, 113 Ga. 815 ( 39 S.E. 293).
3. In holding that the evidence warranted and demanded a verdict for the defendants, both the general ground of the amended motion that the verdict was without evidence to sustain it and the grounds of the motion for judgment notwithstanding the verdict are disposed of adversely to the plaintiff.
4. Special grounds of the motion for new trial in proper form complain of instructions given in charge to the jury. At least one of the grounds has merit, but any error committed in charging the jury was harmless in view of the verdict for the defendant being demanded by the evidence.
5. We have reviewed the remaining grounds of the motion for new trial in which exceptions are taken to the admission and exclusion of evidence. These grounds are nine, ten and eleven.
Ground nine does reveal that the only objection interposed by the plaintiff to the admission of the evidence therein referred to was "I object", and ground ten does not show on what grounds the objection to the evidence was made. The grounds are not complete and cannot be considered.
Ground eleven of the motion for new trial complains of rulings made by the court in excluding a letter in which an offer of compromise was made. The ground is without merit.
The trial judge did not err in overruling the motion for a new trial and the motion for a judgment notwithstanding the verdict.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.