Humphreys v. Smith

Atkinson, J. 1. The record contained an original motion for new trial, based upon the general grounds only, and also two amendments to the motion for new trial, containing various special grounds. It does not appear that an order was taken at or before the hearing approving the special grounds, but it does appear that a number of the special grounds are set forth in detail in the bill of exceptions, which contains an Averment that “the recitals of fact contained in the motion for new trial are true and correct.” Held, that such of the grounds as are set forth in the bill of exceptions are sufficiently verified to be considered by this court. Starling v. Thorne, 87 Ga. 513. 2. The case involves simply the question as to whether the claimant was entitled to the specific performance of an alleged parol agreement for the sale of land between himself and the plaintiff’s intestate, the plaintiff being an administrator who was seeking to sell the land in dispute. The pleadings and evidence were not of such character as to raise an issue of fraud. The instructions of the judge with reference to fraud, being wholly foreign to the issue, were calculated to mislead the jury, and a new trial should have been granted on account of the error committed in giving such instructions. Judgment reversed. All the Justices concur.