Varnon v. Nabors

SOMERVILLE, J. This action, which is founded upon a simple promissory note for $50, seems to have elicted a prolixity and verbosity of pleading on the part of opposing counsel which is worthy of a larger, if not a better, cause. Indeed, after a perusal of this record, we are forcibly reminded of the humorous plaint of Chief Justice Bléckley, of Georgia, concerning a similar case. Said he: “In the ornithology of litigation this case is a'tomtit, furnished with a garb of feathers ample enough for a turkey. * * * It seems to us that a more contracted plumage might serve for so small a bird, but perhaps we are mistaken.” But, to quote the Chief Justice further: “In every forensic season, we have a considerable flock of such cases, to be stripped and dissected for the cabinets of jurisprudence. We endeavor to pick our overfledged poultry Avith judicial assiduity and patience.”—Lukens v. Ford, 87 Ga. 542, 13 S. E. 951. As clearly shown by the evidence, the only disputed issue in the case was whether the plaintiff pointed out — 468 — to the defendant, as the subject-matter of the sale, other land or more land than was embraced in the deed which the plaintiff tendered to the defendant in the execution ■of the plaintiff’s part of the agreement. The tender of such a deed conveying a good title was, under the evidence, a condition precedent to the ■defendant’s obligation to accept the land, and to his liability to pay the |50 note. But a condition precedent may be waived by the party entitled to insist upon it; and when a vendee accepts, or thereafter keeps bought property which is not, as to quantity, in accordance with such a condition, having knowledge of such variance, he thereby effectually renounces the right of recoupment for a partial failure. The defendant’s testimony on this subject is: “I saw the deed and know when Mr. Varnon made it. I looked .at it, looked at it the second time. I did not tell him I was satisfied with the deed. When I found out it did not contain all the land I thought it did, or what was sold to me, I told him I was not satisfied. I was :still in possession of it. I moved down on it immediately after that, and I was in possession three or four months, possibly. * . * * I never got possession to the wire fence. The owners of it turned me off. I got the house. I took possession of the land embraced in the deed, but I did not get what he sold me. * * * I don’t know when I gave him notice that I would not take it. It was some time before I got off of it.” In Coleman v. First Nat. Bank, 115 Ala. 307, 213, 33 South. 84, 85, it was said: “It seems to be a principle of universal recognition that if a party desires to. .abandon or rescind a contract, by reason of a breach of it by the opposite party, or his inability to comply, [he] must act promptly and decidedly, upon the first discovery of the cause of' rescission.’ ” — 469 — All the authorities in fact so hold, and, on the uncontradicted statement of the defendant himself, his retention and use of the property for several months, with knowledge that it did not embrace a relatively small parcel stipulated for, forfeited his right to abandon or rescind the contract of purchase. The defendant’s special pleas expressly assert the plaintiff’s breach of the condition precedent to the defendant’s liability on the note. This assertion was prima facie a good defense, and if true could be met only by a plea of confession and avoidance. Had the plaintiff filed such a replication affirming simply the fact of the defendant’s waiver of that condition by keeping the land with knowledge of its deficiency in quantity, the plaintiff would unquestionably have been entitled on the whole evidence to the general affirmative charge. But replication 5 was patently inapt as to this mode of avoidance, and was also incumbered with matter of traverse.' Hence, as the issues were framed and submitted, they rested upon disputed facts, and the general charge on the whole case was properly refused. Replication 1 was clearly bad as to those pleas which assert only a conditional delivery of the note; and, as to those pleas which, deny any delivery to the plaintiff, it Avas no more than the general issue. The demurrer to this, as also to replication 2, 3, and 4, was sustained generally, and the assignment of error is also general, and is not limited to the elimination of the pleading as a reply to any particular pleas. The assignment cannot, therefore, be sustained. Replication 2 was bad in that its averment of performance was qualified by the statement that the deed — 470 — tendered to the defendant contained all the lands stipulated for, so far as the plaintiff knew. Replications 3 and 4 set up versions of the contract of - sale substantially contradicting the version of that contract as set up in the pleas. They were therefore, in effect, pleas of the general issue, and not subject to the demurrers. And, as there was no purely formal plea of the general issue on file their elimination on demurrer was prejudicial error. Replication 4 avers also, that the defendant entered into the possession of the land and retained it until dispossessed by suit. It might by appropriate amendment serve as a plea of waiver .of the condition precedent, but is clearly not apt for that purpose in its present form. ' Several of the defendant’s pleas confuse the wholly distinct. theories of an original absence of consideration, and a subsequent failure of consideration. It sufficiently appears, however, from the facts averred, that these pleas assert either a subsequent failure of consideration, or the breach of a condition precedent. The practice of embodying in one count or plea the whole or a part of another count or plea on file in the case, by reference to and adoption of the whole or some definite part thereof, is fully established in this state as a legitimate mode of pleading. We cannot, however, sanction the practice exemplified, by special plea 4, of averring that the note “was given for the purchase money of lands pointed out to defendant, as described in plea No. 1 which is referred to and adopted in this plea.” This plea must therefore stand solely upon its own averments, and, thus considered, it was clearly subject to several of the grounds of demurrer, which should have been sustained. — 471 — It was competent for the defendant to show the actual consideration for the note sued on, and to show what land was pointed out to him as the subject-matter of the sale; and to illustrate this, by a diagram of the land shown to be correct. And he was properly allowed to say that he did not get a deed to the land. That the defendant had “backed out of other trades,” if so, was wholly immaterial to the issues, and thé plaintiff was properly prevented from showing it. Other rulings on the evidence which are assigned for error were so manifestly correct as not to justify, discussion. The trial court at the conclusion of the defendant’s evidence ruled out in toto the testimony of two of his witnesses, which had been previously admitted over the plaintiff’s objections. Before the jury retired, the plaintiff requested in writing an instruction to the jury that they could not consider the testimony of these witnesses in arriving at a verdict, which was refused. We think the plaintiff was entitled to such an instruction, and that its resufasal was error. Charge 1, as given for the defendant, was certainly capable of misleading the jury into the belief that the trial judge was instructing them to find for the defen clant, and such a charge ought not to be given without explanation. However, it was subject also to interpretation in the sense evidently intended by the court, viz., that there was sufficient evidence to justify a verdict for the defendant, if they should so find. In such cases, as often declared by us, the trial court will not be put in error unless it refuses to give an appropriate explanatory charge at the request of the other party. Charge 2, given for the defendant, states a correct legal proposition; and, if misleading as applied to some — 472 — phases of the evidence, the plaintiff should have requested an explanatory charge. As the case must be reversed for the reasons pointed out, other rulings need not be noticed. Reversed and remanded. Anderson, C. J., and Mayfield and Gardner, JJ.? concur.