Bass v. African Methodist Episcopal Church , 155 Ga. 57 ( 1923 )

Eussell, C. J.

At the previous appearance of this case before this court (Bass v. African Methodist Episcopal Church, 150 Ga. 452, 104 S. E. 437) Mr. Justice George made a full statement of the contents of the petition, thus obviating at this time any further reference to that. The case was then before the court on the demurrers, general and special; and since it was then ruled that the description of the land as contained in the sixth paragraph of the petition was sufficient, that ruling is the law of this case, and has a controlling effect upon several óf the exceptions contained in the present record. The sixth paragraph of the petition is substantially set forth in, the opinion in Bass v. African Methodist Episcopal Church, supra. This paragraph purports to set forth the entire contract, including the description of the land and the terms of the payment therefor; and the express and unequivocal ruling of the court in 150 Ga. 452, second headnote, “ that under the allegations of the petition the contract which the plaintiff seeks to have specifically performed is certain and definite in all the particulars essential to its enforcement,” absolutely prevents any further cavil upon that point. This prior ruling of the Supreme Court also authorized the trial judge, in the trial now sub judice, to instruct the jury that if they, found from the evidence that the allegations of the sixth paragraph were supported, the plaintiff would be entitled to a recovery. . When the case was here before, the action was classified and construed as “ an action for specific performance of a contract,” holding, impliedly at least, that the written receipts given by Bass excluded this ease from that class of cases in which a mere parol agreement is sought to be enforced. Furthermore, when this case was previously here the right of the plaintiff to maintain the action as a corporation was raised; and this court held, quoting from Smith v. Weed Sewing Machine Co., 26 Ohio St. 562, that “ a foreign corporation suing in the courts of this State is not required to set out in the petition the terms of its charter showing its capacity to maintain the action.” And in consequence this court also held that “the contract and the writings set out in the. petition were adequate to create and declare a trust; that the trust had become executed; that the legal title had passed, by operation of law, into the plaintiff. . . So far as the defendant is concerned it'is immaterial whether the corporation had power under its charter to acquire and hold land.”

When the case was 'here before, the plaintiff in error raised the point that a corporation created and existing under the laws of the State of Ohio, could not maintain the action, upon the ground that the petition did not set out the charter powers of the corporation. In ruling upon this point, the court distinguished the present case from that of Carver Cotton Gin Co. v. Barrett, 66 Ga. 526, and held that, in addition to such powers as may be expressly granted by its charter, all corporations have “powers that are reasonably necessary or proper for the execution of the powers that are expressly granted, provided such powers are not withheld,” and that “ the implied power to acquire and hold real and personal property is incidental to corporations.” And after the citation of numerous authorities which draw distinctions between incidental and essential powers of corporations, this court held, that “it would seem more logical to presume that any contract of a corporation, whether for the purchase of land or personalty, is within the legitimate scope and purpose of the corporation until the contrary appears.” When this case was here before, this court (after citing approvingly from Smith v. Weed Sewing Machine Co., supra, New State Land Co. v. Wilson, (Tex. Civ. App.) 150 S. W. 253 (2); Bank of Augusta v. Earle, 13 Peters, 521, 10 L. ed. 274) also held: “When a foreign corporation brings .an action in the courts of another State, it is not necessary that its charter should be set forth in the declaration.” When the case was here before, construing the sixth and seventh paragraphs of the petition together, it was held that “it is-apparent that the plaintiff was, under the rule in this State, clothed with a perfect equity equivalent to a legal title.” “ The contract and the writings set out in the petition were adequate to create and declare a trust; that the trust had become executed; that the legal title had passed by operation of law into the plaintiff. If this reasoning be sound, then, so far as the defendant is concerned, it is immaterial whether the corporation had power under its charter to' acquire and hold land.” And finally the court said, “We do not, however, place our ruling that the plaintiff, an Ohio corporation, may maintain the present action upon the narrow ground indicated above. We hold broadly that a corporation chartered under the laws of a sister State, suing in the courts of this State, is not required to set out in the petition the terms of its charter showing its capacity to maintain the action.” The court further -held (p. 458)'that the precise description of the land is certain and unequivocal in all its essential terms, or can be rendered so by a survey. “ A surveyor would have no difficulty in locating such point [of beginning] from the description given in the contract, with the aid of competent extrinsic evidence.”

When the case was here before, nothing was presented for review except the rulings of the trial judge upon the demurrers, general and special. There was no reference in the bill of exceptions at that time to certain pleas in abatement, or to rulings upon them which are now sought to be reviewed in the present bill of exceptions. It appears from the record in this case that the exceptions to the rulings of the lower court upon these pleas in abatement were preserved pendente lite on March 16, 1919, which was prior to the filing of the former bill of exceptions which sought to review the judgments upon demurrer.

It appears from the record that before the present bill of exceptions was sued out, the defendant had already preserved by proper exceptions pendente lite the exceptions to the overruling of his pleas in abatement, and to the judgment of the court upon •such pleas. We are of the opinion that in no case is this court required to investigate the merits of an exception which was pending prior to a bill of exceptions in which the point could have been presented long before the time when it was presented, and especially in a ease which was previously brought before this court, in which the rulings upon demurrers were assailed, and when at the same time rulings on pleas in abatement could have been considered. There must be an end of litigation; and we hold that in a case where the rulings of the lower court have been preserved by exceptions pendente lite, and a party desires to except to any- ruling controlling in the case rather than wait until the conclusion of the case, and embodying all such matters in a final bill of exceptions, if he prefers to present one exception pendente lite he must present all such similar exceptions then of file in the ease at the same time. In other words, as has heretofore been -said by one of the Judges of this court, the court will not undertake to take two or three bites at the same cherry, in the present congested state of litigation in this State. We will not undertake to try a case by piecemeal. This is said bearing in mind that litigants have the right, by a statute, to present for review any ruling or judgment that might be conclusive in the case, that is, any ruling of the lower court, which, had the ruling been contrary to that rendered, would have terminated the case. For the reason just stated, the rulings of the judge upon the pleas in abatement would have béen just as conclusive as the rulings upon the demurrers presented in the former bill of exceptions in this ease. Under the ruling in Perry v. McLendon, 62 Ga. 598, it appears to us that the failure in this case to present the ruling upon the pleas in abatement in the first bill of exceptions filed by the defendant (Bass v. African Methodist Episcopal Church, supra) bars the defendant from presenting the point in a later bill of exceptions; for the reason that a plea of res adjudicata extends not only to what was actually presented, but to what might, could, or should have been presented. As Judge Bleckley said in Daniel v. Towers, 79 Ga. 785, “ It will not do to allow him to bring up his case in sections, whether there is a trial of it by a court divided in sections or not; he must bring up his whole case as he expects to stand upon it for all time; and if he does not do it, neither he nor his friends can repair the error afterwards.” Again, in Perry v. McLendon, supra, Judge Bleckley said, “No party, plaintiff or defendant, is permitted to stand9 his case before the court on some of its legs, and, if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of a case, and not certain of its limbs only, that the final judgment takes hold upon.” And so a party who asks from this court'a review of the judgment of a lower court upon points preserved by exceptions pendente lite must present all of such exceptions then pending together and in the first bill of exceptions, or be barred from thereafter presenting the case by piecemeal.

The fourth, fifth, sixth, seventh, eighth, and ninth grounds of the motion for a new trial are exceptions to the charge of the court, which we hold to be entirely without merit; and as a lengthened review of these grounds would serve no purpose useful to the courts or to the profession, we shall not elaborate what is ruled in the headnote.

In the tenth ground of the motion for a new trial it is alleged that the judge charged as follows: “ There has been something said in regard to a former suit in reference to the property now in controversy. I charge you that whatever may have been the result of a former suit in reference to the property in controversy should have no influence on the minds of the jury in reaching a verdict in this case; except the jury would have a right to take into consideration any evidence sworn to by any witness in a former suit, in passing on the credibility of the witness that has been sworn in this case. But whatever may have been the result of the trial of that case, or the disposition of that case, touching the property now in controversjr, should not affect the jury whatever in reaching a verdict in this ease.” This instruction is alleged to be erroneous, because (a) It prejudiced the right of the defendant to estop the plaintiff who brought the former suit in the name of Devereux Mission Church as owner of the land, against the contract on which the present suit was based, by proving the same. (&) It limited the effect of the former inconsistent position from this one taken by the same parties — only in a different name — to the injury of defendant’s contention. (c) Such charge minimized and prejudiced the minds of the. jury, and expressed an opinion against the testimony of defendant and his witnesses showing that these same parties in reference to this same propertjr, in negotiating over the former suit, admitted they had no survey of the land and no lines had been made thereof, (d) This was unauthorized by the evidence, and highly prejudicial and harmful to the defendant.

There is no merit in any of these exceptions. It will be noticed from the charge that the court confined his instructions to the result of the former suit, and the result of the former trial. Assignment of error (a) complains that the charge prejudiced the right of the defendant to estop the plaintiff who brought the former suit, etc. This exception is based upon a misconception, because in ruling upon the pleas in abatement the court had decided, and we think rightly, that the plaintiff did not bring the-former suit. And for the same reason there is no merit in excep-tions (5) and (c). As to (c), even if there was evidence in behalf of the defendant tending to show that there had been-litigation between the same parties it could have been excluded by a mere motion, and for no reason would the judge be prevented from charging the law of the case as contained in his prior adjudication upon the special plea in abatement, that there had- never been any prior litigation on the part of the present plaintiff. As to exception (d) we hold that the charge was neither unauthorized by the evidence, nor prejudicial, nor harmful to the defendant.

As to the exception contained in the 11th ground we hold: (a) That the charge was applicable to the evidence. (6) It was a correct statement of the law. (c) It was not argumentative. As to (d) : The objection that the suit was based on a parol contract for land might be sustained if the papers introduced in evidence were mere receipts; but in our opinion the receipt for $45 was properly construed by the judge as an ambiguous written contract. It was executed by the defendant, Bass, long before the suit was filed, and therefore the nature of the case was not affected, even though there were a prior parol contract with reference to the land. When this case was here before (Bass v. African M. E. C., supra), although it was stated that it is not alleged in the petition whether the contract was in writing or rested alone in parol, it was construed as an action for specific performance of a contract, and the use of the word “ contract ” generally implies that the agreement has been reduced to writing. However, aside from what was said by the court at that time, if it be said that what was then said was obiter, we now coincide with the opinion of the trial judge that the writing containing a receipt for $45, to which we have referred, was a written contract for the sale of certainly specified land which was definitely described.

There was not, for any reason assigned, any error in the instructions of which complaint is made in the 12th, 13th, and 14th grounds of the motion for a new trial.

In the 15th ground the plaintiff in error insists that the court erred in failing to charge that the proof necessary to sustain specific performance of a parol contract for land should be established beyond a reasonable doubt, for the reason that the proof showed that the contract was in parol. While we grant that the rule that the terms of a parol contract for land must be proved beyond a reason'able doubt, having held that this contract was in writing as embodied with the receipt of the $45, the judge should not have charged otherwise than as he did..

The 16th ground of the motion for a new trial complains that the trial judge did not instruct the jury as to one particular circumstance which was favorable to the defendant. But it was not error for the court to omit reference to this particular circumstance, in the absence of an appropriate written request. Furthermore, the relevancy of this testimony can not be determined without reference to the brief of evidence; and therefore the assignment of error is too incomplete to require consideration.

The assignments of error presented in the 17th, 18th, and 19th grounds of,the motion for a new trial, as well as 19(a), are sufficiently dealt with in the 8th headnote. The court did not err in admitting the extract from the book entitled “A. M. E. Discipline,” for there is no possibility that the extract admitted in evidence could have been harmful to the defendant, even if it be conceded that the .contents of the extract were irrelevant.

It is averred in the 20th ground of the motion for a new trial that the court erred in admitting a purported copy charter of the plaintiff, over objection that it was not properly authenticated, certified and proved, for the reason that no certificate of authority appeared of the officer, Harvey C. Smith, whose name purported to be affixed thereto, and that no seal of the State of Ohio, was attached to the copy, showing its authenticity. Articles of incorporation are fully set out in the record and certified before a notary public of Green County, Ohio, and the certificate of the Secretary of State is as follows: “ I, Harvey C. Smith, Secretary of State of the State of Ohio, do hereby certify that the foregoing is an exemplified copy, carefully compared by me with the original record now in my official custody as Secretary of State, and found to be true and correct of the articles of incorporation of the African Methodist Episcopal Church.” The assignment of error is that the court erred in admitting said charter in evidence, because the same was not properly certified as required by law for its admission, no seal of the State of Ohio being affixed thereto, nor the official authority of the purported officer certifying the same showing its authenticity or making its admission as evidence legal. We do not think the court erred in admitting the charter as certified; 'and certainly not in the absence of any proof that under the law of Ohio it was required that the Secretary of State, in certifying to the contents and powers conveyed by charter to a private corporation, affix the seal of the State of Ohio to his certificate, and also proof of some law of the State of Ohio that the official authority of the Secretary of State to certify the authenticity did not exist. Neither the lower court nor this court is required to take judicial cognizance of the laws of another State as to these points.

There is no merit in the ground of the motion based upon alleged newly discovered testimony. An examination of the record discloses that the exercise of a very small degree of diligence would have obviated the necessity of any diligence at all post mortem.

Nor did the court err in excluding the following letter: “ Mr. W. A. Bass, Devereux, Ga. Dear Sir: [Representing the African Methodist Church, I beg to call your attention to your bond to execute title to the Church of two acres of land, on the payment of $100. I now have this money in hand and am ready to make payment to you, and beg that you come in, as they are anxious to have this matter closed. Your attention to this will greatly oblige. Yours very truly, Burwell & Fleming, By W. H. Burwell.” Even if the assignments of error were sufficient to present anything for the consideration of this court, the exceptions are based upon a misconception of the case and of the evidence, and are not sustained by the contents of the letter itself. The testimony shows that Mr. Burwell did represent the trustees for the Devereux church in a different case; but his statement that he represents the African Methodist Church certainly would not bind that church. It is well settled that it requires something more than a mere declaration of a person that he is the agent of another, to create him the agent of that other. The mere fact that there was no proof that the writer of the letter was an agent of the African Methodist Church, other than the declaration contained in the letter, would be sufficient reason for excluding it. But conceding, for the sake of the argument, that Mr. Burwell was, as insisted by counsel for plaintiff in error, the representative of the church, the offer to pay $100 is necessarily an admission that the trustees of this negro church had not paid the balance of the $100 which was due on the purchase-price of the land. The evidence shows that the home of the plaintiff corporation is in the State of Ohio. It is inferable from the letter itself that they may have sent $100 to Burwell, preferring to again pay the sum of $100 which had already been paid by the negroes in [Hancock county, rather than be involved in the worry, expense, and delay of litigation.

The third exception to the exclusion of the letter assumes that it should have been admitted because the attorney as a witness had testified that as an attorney he had represented the Devereux Mission Church, which the lower court and this court held was not the same party as the African Methodist Episcopal Church North.

In the 23rd ground of the motion for a new trial it is insisted that the court erred in permitting Joe Hardin to testify that he was a steward and head trustee of Devereux Mission Church, known as Ward’s Chapel,, that he was elected trustee and was elected every year, and that his daughter, Carrie, kept minutes of the election, over objection that the minutes of the trustees and stewards was the best evidence, and that the testimony was a conclusion of the witness and irrelevant. We do not see how this testimony could have harmed the defendant in the court below. But the statement of the witness that he was trustee and steward, and head trustee of the Devereux Mission Church, was not opinionative, but a statement of a fact; and we do not think it was error for the court to allow him to testify that he was elected trustee every year. The fact that his daughter kept minutes of the election, in our opinion, did not prevent the witness from stating the official character in which he acted with reference to the minutes.

The verdict reached is sustained by the evidence. It was a verdict rendered apart from and above natural racial prejudice. It was free from any legal error; and the order overruling the motion for a new trial was a legal conclusion of the litigation, and should bé affirmed.

Judgment affirmed.

All the Justices concur.