Kennedy v. Walker , 156 Ga. 711 ( 1923 )

Hill, J.

1. The exceptions pendente lite filed by the plaintiffs in error in the court below, to the order of the trial judge overruling their demurrers, can not be considered by the Supreme Court, for the reason that no error is assigned tnereon in the main bill of exceptions, nor in this court on a separate assignment of error before argument. The plaintiffs in error merely specify the exceptions pendente lite as a part of the record material to a clear understanding of the errors complained of. Atlantic & Birmingham R. Co. v. Penny, 119 Ga. 479 (46 S. E. 665) ; Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668); U. S. Fidelity & Guaranty Co. v. First National Bank, 149 Ga. 132 (3) (99 S. E. 529).

2. A plea of payment may be supported by parol evidence that certain checks were delivered and accepted in payment, without producing such cheeks or accounting for their nonproduction. Fisher v. Jones Co., 93 Ga. 717 (21 S. E. 152). Consequently, where on the trial of the ease the plaintiff testified “ the money that I put in the stuff, in canceled checks to show, was $1725.75 for thdse checks. J have a memorandum here that gives the dates and amount and which was left in Judge Sheppard’s office on the hearing, they were introduced in Claxton, and Col. Thomas examined them and passed them over to Kennedy, and he said every one of them was right. Those checks was left in the hands of Judge Sheppard; the check referred to was the check tendered to Mr. Thomas and offered at the temporary hearing before Judge Sheppard at Claxton,” such evidence was not inadmissible on the ground that the canceled ehedks were the highest evidence, and that their absence had not been satisfactorily accounted for.

3. Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of the intention to rely on the exact terms of the agreement. Until such notice the departure is a quasi new agreement. Civil Code (1910), § 4227; McNatt v. Clarke, 143 Ga. 159 (4), 160 (84 S. E. 447). Accordingly, where the plaintiff testified, “1 tell the jury that Mr. Dorminy agreed for me to sell Kennedy half interest but without putting up this $1000, as to whether he agreed without that, there was nothing said of the $1000 there,” it was not error for any reason assigned for the court to instruct the jury as follows: “Now in regard to the other contract, the contract between Walker and Kennedy, the contract which 1 just charged you was a contract with Dorminy, Walker, and Kennedy, see whether or not Walker sold to Kennedy his interest in it with the knowledge of Dorminy. If he did, and Dorminy didn’t protest against it, in other words, if Walker sold out his interest in the plant to Kennedy for the consideration expressed in the contract between Walker and Kennedy, and Dorminy knew it, and knew of the terms of that contract, so far as the carrying on the contract between Dorminy, Walker, and Kennedy, and he permitted Kennedy to operate under it, why then he couldn’t set up the defense that he was not bound by the contract of Walker and Kennedy; in other words, Kennedy and Walker contract would be good if Dorminy knew of it, knew of that contract and permitted it to be executed and gone on and accepted the terms of that contract entitling Kennedy to take the place of Walker, if he knew that.”

4. The 12th ground of the motion for new trial is as follows: “ Decause the court, in the presence of and the hearing of the jury, expressed his opinion as to the evidence, and directed and advised the plaintiff Walker in the following order and the jury in the case, the money that you put into the stuff which they took hold of and handled would be that, that you would have the right to recover for.” It does not appear from the above assignment that the alleged expression of opinion of the court was contained in any charge or instruction to the jury, or that :he language purported to have been used by the judge' was used in any ruling on the admissibility or rejection of evidence to the jury, nor that any objection was made at the time to such remarks by motion for mistrial or otherwise, or under what circumstances the language was used; and therefore the assignment of error is incomplete and insufficient to be considered by this court.

No. 3599. November 14, 1923.

5. The verdict is supported by the evidence, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur, Bussell, O. J., specially. Parker & Parker and James B. Thomas & Son, for plaintiffs in error. W. G. Warnell and M. Price, contra.