Sanderlin v. Willis

Lumpkin, Justice. This case was before this court at the March term, 1894, when a new trial was granted because, in our opinion, the presiding judge erred in striking a plea of the defendant al 279 leging that there had been a breach of the bond for titles delivered to him by the plaintiff. 94 Ga. 171. Another ■trial was had, which resulted in a second verdict for the plaintiff, and the defendant now assigns error upon the overruling of his motion for a new trial. The announcement contained in the first head-note is too manifestly correct to require argument in its. support. The real question, therefore, upon which the case turned was whether or not the defendant sustained his plea by evidence. He alleged, in substance, that he had tendered to the plaintiff, Willis, the balance of the purchase money for the land bargained for; had demanded of Willis, the title ■called for by his bond, and that Willis had utterly failed and refused to comply with tins demand. After giving the entire brief of evidence a thorough and ■careful examination, we are satisfied these allegations were not sufficiently proved. There was evidence tending to ■show an inability on the part of Willis to make a good title to the land at the time of the alleged tender and demand, but no such defense was set up in the plea. Considered as to its bearing upon the real defense relied upon by the defendant and put in issue by his plea, this evidence is entitled to no weight, being entirely foreign to the defendant’s contention that Willis had made a breach of his bond by failing and refusing to comply therewith when proper tender and demand were made. Judgment ajjinned. ■