Fletcher v. McMillan

Lumpkin, J. 1. If a person entered into a written agreement with anothei to obtain for the latter a body of timber, including several tracts, to he paid for in an entire amount, received a thousand dollars, and agreed to repay it if he should fail to procure the timber from the'owner of it, this was an entire contract and was not performed by procuring only a portion of the timber described in it from the owner, unless there was a waiver of complete performance by the other party, or a modification of it by the parties thereto. 2. The charge of the court was in substance in accord with the ruling in the preceding headnote, and was not erroneous for any reason assigned in the motion for a new trial. 3. In the absence of any request to charge duly made, the omissions to charge certain propositions of law, of which complaint was made in the motion for a new trial, furnish no ground for a reversal. The court charged in regard to the theory of the defendant. 4. Where the plaintiff alleged that he had paid to the defendant a stated sum of money under a written contract, by which the defendant agreed to return the money upon failure to procure certain timber for the plaintiff, and that the defendant failed to procure the timber, but refused to return the money, and where the defendant denied all the substantial allegations of the petition, though in an amendment he impliedly admitted the contract and set up certain affirmative grounds of defense, but did not withdraw the general denial or make admissions which would make out a prima facie case for the plaintiff, the latter was entitled to the opening and conclusion of the argument. Mitchem v. Allen & Barrow, 128 Ga. 407 (57 S. E. 721). Submitted November 5, 1908. Decided April 19, 1909. Complaint. Before Judge Whipple. Irwin superior court. July-16, 1908. McDonald & Quincey, for plaintiff in error. Graham & Graham, contra. ■5. The verdict was authorized by the evidence. Judgment affirmed. All the Justices concur.