Woodruff v. Bowers , 165 Ga. 408 ( 1927 )

Hines, J.

1. The petition set forth a cause of action, and was not subject to general demurrer. It is to be treated as setting up a parol agreement by which the plaintiff obtained from the defendant a license to enter upon his land and lay out and open thereon a street for the use of the plaintiff and the public, and in the execution of this license incurred expense, whereby the license ripened into an easement running with the land, and irrevocable. In these circumstances the plaintiff was in no sense a trespasser. Sheffield v. Collier, 3 Ga. 82; Southwestern R. v. Mitchell, 69 Ga. 114 (2-c) ; Brantley v. Perry, 120 Ga. 760 (48 S. E. 332) ; Cherokee Mills v. Standard Cotton Mills, 138 Ga. 856 (76 S. E. 373); Civil Code (1910), § 3645. If the enjoyment of the parol license must be preceded necessarily by the expenditure of money, and the grantee incurred expense in executing it, it becomes an agreement for a valuable consideration, and the licensee a purchaser for value. Mayor &c. of Macon v. Franklin, 12 Ga. 239, 243.

2. The grounds of special demurrer are without merit, and the court did not err in overruling them.

3. In the first special ground of the defendant’s motion for new trial it is alleged that the court erred in not giving to the jury, in the language requested, the following instruction: “I charge you, gentlemen of the jury, that if the defendant and the plaintiff did not have a written contract, then, before a verbal contract would be binding on the parties, you must believe that the minds of the parties met, and that they consented and agreed to the same thing in the same way,” and in lieu thereof giving the following charge: “I further charge you, gentlemen of the jury, that if the defendant and the plaintiff did not have a written contract, then, before a verbal contract would be binding on the parties — and it is not insisted in this case that there was a written contract, — you must believe that the minds of the parties met, and that they consented and agreed to the same thing in the same way.” The error assigned is that the defendant was entitled to have the instruction given in the language in which it was submitted. It having been given in the very language in which it was submitted, but with the insertion therein of the language, “and it is'not insisted in this case that there was a written contract,” this assignment of error is without merit.

No. 6147. December 17, 1927.

4. A charge upon the measure of damages, erroneous for any reason, does not require the grant of a new trial where the jury does not award any damages. Lewis Manufacturing Co. v. Davis, 147 Ga. 203 (93 S. E. 206).

5. Where during argument by counsel on the question of admissibility of certain evidence which -was sought to be brought out by counsel for the defendant, and was objected to by counsel for the plaintiff, the judge remarked that he did not see its relevancy, but where after discussion he admitted such evidence, such remark was not an expression of opinion by the court as to what had or had not been proved, or the weight of the evidence after it was admitted, and did not invade the province of the jury, though made in their hearing, and does not require the grant of a new trial. Chattanooga &c. R. Co. v. Palmer, 89 Ga. 161 (2) (15 S. E. 34).

6. There is no such variance between the allegations of the petition and the evidence as requires the grant of a new trial; and the verdict is supported by the evidence.

Judgment affirmed.

All the Justices concur. McOutchen, Bowden & Gaggstatter, for plaintifE in error. Worsley & Flournoy, contra.