Edwards v. Otwell

Broyles, C. J. 1. The ground of the motion for a new trial complaining of the refusal of the court to strike the answer of the defendant can not be considered. Under repeated decisions of the Supreme Court and of this court, rulings on pleadings can not be made a ground of a motion for a new trial. 2-, In the light of the facts of the case and of the entire charge of the court, the two excerpts from the charge, complained of, are not erroneous for any reason assigned. 3. The defendant admitted owing the plaintiff the sum of $42.49, and testified that he had tendered him that amount before and after the suit was filed. The jury returned a verdict in favor of the plaintiff for $42.49, and the plaintiff’s motion for a new trial was overruled. Hi a ground of the motion it is alleged that under the evidence the plaintiff was entitled to a verdict and judgment for $55.49, instead of $42.49 — the [457] amount found in the verdict returned. The record shows that the court instructed the jury that if they found from the evidence that a certain agreement was entered into by the plaintiff and the defendant, and that the defendant had performed his part of the agreement, “the defendant would only be liable to the plaintiff in the sum of the difference between the expenses paid by him and the purchase-price of the property, and, as I understand it, there is no dispute as to what that sum is, if that agreement was made, and that sum would be $4%49.” (Italics ours.) The evidence authorized the jury to find that the agreement referred to in the charge was made by the plaintiff and the defendant, and that the defendant had performed his part thereof. Under such circumstances, when the court charged that “as I understand it, there is no dispute as to what that sum is, if that agreement was made, and that sum would be $42.49,” and counsel for the plaintiff remained silent, he will be held to have acquiesced in the understanding of the court and will not be heard, after the return of the verdict, to contend otherwise. Decided July 20, 1934. Rehearing denied September 19, 1934. Carl Tallant, Howell Brooke, for plaintiff. J. H. Kirby, Wheeler .& Kenyon, for defendant. 4. The court did not err in refusing to grant a new trial. Judgment affirmed. MacIntyre and Querry, JJ., concur.