McMillan v. Benfield

Bell, J. 1. Under the former decision (159 Ga. 457), which is now the law of the case, the written agreement by which the parties canceled and rescinded the contract of purchase did not provide that -M. was entitled to keep the land of B., which he had received in part payment of the purchase-money of the land of M.; but under such contract of rescission M. should account to B. for the land so received by him and after-wards sold and conveyed by him to other parties, so that he could not restore it. 2. It was further held in the former decision, that, in the suit by B. and another to recover of M. on such cause, “the plaintiffs would not be entitled to recover the value of the land which B. conveyed to M. in [813] part payment of the purchase-money of the land of the latter, with interest thereon, but there should be deducted therefrom the rental value of the premises while they were occupied and enjoyed by B. and his co-purchasers.” Upon the second trial of the case, after the grant of a new trial upon an extraordinary motion, the court submitted certain questions to be answered by the jury, one of which was as to the amount to be credited to the defendant for the rental value of the premises occupied by the plaintiffs. The jury answered this question as follows, “Rent $980, interest $770.” Held, that the defendant was not entitled to an allowance for rent and also for interest. Furthermore, the notes given to M. for the balance of the purchase-money of the land occupied by the plaintiffs were surrendered as a part of the rescission agreement, and no interest could be charged against the plaintiffs upon the basis of these notes. The judge did not err in ignoring the item of interest, in framing his decree upon the verdict of the jury. No. 9181. April 11, 1933. McMillan & Erwin, for plaintiff in error. J. G. & H. E. Edwards, contra. 3. The record does not sustain the contention of the defendant that the verdict was not supported by the pleadings and the evidence. 4. There was no merit in any of the special grounds of the motion for a new trial. Judgment affirmed. All the Justices concur.