Brandon v. Pritchett , 133 Ga. 480 ( 1909 )

Evans, P. J.

This is a petition brought by Brandon against Pritchett, praying for the specific performance of a contract for the sale of land. The case had been formerly tried, and a verdict was directed by the court in favor .of the defendant and was set aside by this court on an exception thereto. 126 Ga. 286 (55 S. E. 241). The plaintiffs case may be epitomized thus: Pritchett authorized Clark Grier, in writing, to sell a described parcel of land at a stated sum, the authority to sell to continue for three days only. Grier negotiated a sale with Brandon, and afterwards made a written memorandum thereof, on the same day that Pritchett executed to him his written authority to sell. AVithin the three days Brandon tendered to Pritchett the sum of money named in the contract as the selling price. Pritchett refused to accept the tender, and refused to make Brandon a deed. The defendant, on the other hand, contended and offered evidence tending to prove that within a few minutes after he had delivered to Grier the written instrument empowering Grier to sell the land, and before the trade had been consummated by any written memorandum, he revoked Grier’s authority to sell. There was an issue as to whether the authority given Grier to sell had been revoked. The plaintiff further contended, if such authority had been revoked, that within the three days Pritchett, with a knowledge that he had sold the land to Brandon, ratified the sale and promised to make a deed; this the defendant denied. The court charged the jury that under the pleadings and the evidence he submitted two issues: first, was there a revocation by the defendant of the authority given by him to Clark Grier to sell the land in controversy; and secondly, if there was a revocation of such authority, did the defendant subsequently ratify the act of Clark Grier in making the contract, or memorandum of the sale of the land to the plaintiff? These issues were clearly and fully stated to the jury, and the law appropriate thereto was correctly stated by the jrrdge in his instructions.

The defendant prevailed, the court refused to grant a new trial, and the plaintiff brings error. Complaint is made in the motion for new trial that the court erred, in failing to separate the issues and contentions of the plaintiff and defendant, and to instruct the jury on which issues, respectively, the plaintiff held the burden of proof and on which the defendant held the burden of proof; in failing to submit the contention that if the agent of the defendant acted on his written authority with the plaintiff before revocation or notice thereof, the plaintiff would be entitled to prevail;' and in charging as follows: “First, was there a revocation by the defendant of the written authority given by him to Clark Grier to sell the land in controversy. The plaintiff contends that there was no revocation; and that constitutes an issue that you are to pass upon and determine from the evidence submitted in this case.” The vice of this charge is said to be in1 the court’s failure to limit any alleged revocation, in order to make it effective, to a time previous to Grier’s acting under his written authority and dealing with the plaintiff. Complaint is also made that the court erred in charging as follows: “The defendant contends that the paper” (referring to the authority given by Pritchett to Grier to sell within three days) “was revoked, and the powers given herewith were revoked from the fact that he sent Mr. Hooks to Grier, requesting him to return the paper, and withdrawing the paper and the powers conferred in this paper from Grier.” The error in this charge is said to be in that it assumes as an uncontested fact that the defendant sent Mr. Hooks to Grier, requesting him to return the paper, and withdrew the powers therein conferred upon Grier. Complaint is also made of the following charge: “Now, gentlemen, of the jury, if you find that there was never any ratification of this first paper or authority given by Pritchett to Grier, then on the question of ratification you would find, or decide, in favor of the defendant. As to whether there was any ratification you look to all the facts and all the attendant circumstances under the rules .already given you; and if there was a ratification of it, then on the issue of ratification you will find in favor of the plaintiff.” The error alleged is that the charge is confusing and misleading. Complaint is also made that the charge as a whole was constructed so as to impress the jury with the defendant’s contentions, to the prejudice of the plaintiff’s rights under the pleadings and the evidence. Error was assigned upon the failure of the court to instruct the jury as to their duty to reconcile, and the rule for reconciling, conflicts in the evidence. We have carefully examined these criticisms upon the charge, and think they are without merit. If the defendant desired specific instructions upon the rules of law applicable to reconciling conflicting evidence, he should have specially requested the same by a timely written request. The evidence, though conflicting, was sufficient to authorize the verdict, which was approved by the court, and no reason is made to appear why the court’s discretion in refusing a new trial should be disturbed.

Judgment affirmed.

All the Justices concur.