Parker v. Cramton

Lumpkin, J. 1. The defendant pleaded that the plaintiff had an opportunity to settle with the claimants of the one-third interest in the property for $50, but failed and refused to do so, and therefore that the defendant was not in any event liable for more than that sum. This is an effort to apply the rule, that where one is injured by a breach of contract he is bound to lessen the damages as far as practicable by the use of ordinary care and diligence (Civil Code (1910) § 4398), to a case to which it is not applicable. When sued, the warrantee was not bound to compromise. Had he done so without the agreement of the warrantor, the latter would doubtless have declined to be bound by it, and set up that there was no right to recover against him, because there was no ouster but a voluntary settlement to which he was not a party. [424] 2. If there was a breach of warranty as to an undivided interest in the land, that the balance may have enhanced in value and may have been sold by the warrantee at an advanced price would furnish no defense to the warrantor in a suit for the breach. Increase in value after the sale and warranty is a benefit accruing to the vendee, not to the vendor. The paragraph of the plea which set up that the defendant was informed “that plaintiff finally adjusted, the matter by selling the property at an advance of some $20,000.00 over what he paid.for it, and that he has lost nothing on account of the transaction,” was properly stricken. 3. The defendant pleaded, that, after the plaintiff had made claim against him for a breach of warranty, the plaintiff settled with the warrantor of the defendant for $1,000, and released him, and that this operated to release the defendant. This plea was properly stricken. The case was not one of releasing one of two joint contractors, and thereby releasing the other. The defendant, as warrantor of the plaintiff, and the warrantor of the defendant were not joint contractors. Each was liable to the extent of his warranty. But this might be in different amounts. The amount of the purchase-money paid to the defendant and covered by the warranty from his vendor was not alleged. If settling with him would operate as a release of the defendant on his warranty, on the ground that there would be a liability o7er to the extent of the former warranty, it would only be a release pro tanto. If the liability of the former warrantor was only for $1,000, it certainly should not release the defendant for a greater breach. The plaintiff conceded a credit to the extent of $1,000, the amount collected by him. 4. A record of a judicial proceeding of another State, certified in accordance with Civil Code (1910) § 5824, is admissible in evidence in this State, although the great seal of the other State is not attached. The section cited and section 5819 have been held not to conflict with each other. Sloan v. Wolfsfeld, 110 Ga. 70 (35 S. E. 344). 5. None of the other grounds of the motion require a new trial. If the fifth ground of the amended motion for a new trial is sufficient in form to raise a legal question, which is doubtful, it is apparently controlled in principle by the decision in Chattanooga, Rome & Columbus R. Co. v. Jackson, 86 Ga. 676 (13 S. E. 109). [425] Objection was made to including attorney’s fees in tbe verdict; but the presiding judge certified that it was admitted by counsel for the defendant that if defendant was liable at all, he was also liable for attorney’s fees as claimed. Moreover, there was evidence as to the law of Alabama, where the land, was situated, and where the warranty deed was made, touching the measure of recovery in such a case. The defendant introduced no evidence. There was no error in directing a verdict. Judgment affirmed. All the Justices concur, except Fish, O. J., absent.