2. Where the plaintiff's evidence amply supported the material averments of his petition, there is no merit in the general grounds of the motion for new trial.
3. Where a special ground does not set forth any of the evidence to which an objection was interposed or indicate where in the record it may be found, it is too incomplete to be considered.
4. While payment of a part of the purchase money is not alone such part performance as will take an oral contract out of the statute of frauds, if accompanied by possession, it will amount to such part performance.
5. A ground which fails to point out what was omitted from a charge and one which does not include that part of the record which shows why desired instructions are pertinent and material to the case present no question for review.
6. Grounds not referred to in the brief of movant's counsel, who made no oral argument, must be treated as abandoned.
7. An exception to the admission of written evidence does not show harmful error where oral testimony as to the contents of the writings was admitted without objection.
James L. Whaley filed his petition in Bibb Superior Court against A. M. Aldridge and his daughter, Linda Joyce Aldridge Baughcum. His final petition, as amended, alleged in substance that on June 3, 1957, the defendant Aldridge was the owner of certain described property located in Jones County, Georgia, known as Ginny Lynn Acres and consisting of 24 lots; that the plaintiff contacted the defendant in response to newspaper advertisements announcing the property for sale, met the defendant at the location of lots 11 and 12 of Ginny Lynn Acres and inspected them with the defendant; that on the plaintiff's expressed desire to purchase one of the lots, he was directed and instructed by the defendant Aldridge to contact T. Waring Bennett, an employee of the First National Bank, Macon, Georgia, to complete negotiations and arrangements for the purchase of the lots; that he did subsequently contact Bennett, in pursuance to the instructions of Aldridge, and completed negotiations for lots 11 and 12 of the described property, agreeing to pay a total of $590 for the two lots; that he paid $150 by a check made payable to the bank and, on the instructions of Bennett, executed a note in the amount of $502.66 for principal and interest, payable to the bank, and in 23 consecutive monthly installments of $21 each with a final payment in the amount of $19.66; that, thereupon, he was presented with a check in the amount of $502.66 payable to the plaintiff, which was immediately endorsed by him and presented to Bennett for deposit to the account of Aldridge; that he was advised by Bennett that he would be given a deed to the property upon payment of the loan note to the bank; that the plaintiff did, thereafter, enter into possession of the property and make valuable improvements on the property; that, upon paying the note in full, he made demand for the execution of the deed, as had been promised by Bennett, and was refused; that on or about February 2, 1959, the defendant Aldridge had fraudulently conveyed the property to his daughter without consideration and for the purpose of hindering, delaying and defrauding the petitioner. The prayers were for specific performance of the contract and cancellation of the deed from Aldridge to his daughter.
The defendants filed general and special demurrers to the petition which were overruled. Exception was taken to the overruling of the demurrers, but was not insisted upon in this court. Thereafter, both defendants, in separate answers, denied most of the material allegations of the petition.
On April 19, 1961, the matter came on regularly for trial before a jury at which the following evidence was adduced. The plaintiff introduced evidence to substantiate the various allegations of his petition, including the testimony of three other persons that they, too, had answered ads in the newspapers concerning lots in Ginny Lynn Acres and had contacted Aldridge as a result thereof, had inspected the lots in the company of the defendant and had then been instructed by Aldridge to contact T. Waring Bennett. Evidence was further introduced that Bennett conducted himself in the same manner, and went through the same routine with these witnesses as with the plaintiff. The plaintiff's evidence showed that he went into possession of the lots and made valuable improvements, in that he cut down trees, cleaned the lots off, and did some dynamiting.
The plaintiff also submitted evidence that Aldridge made the deed to his daughter at a time when he had no other property and for no consideration.
The defendant Aldridge positively testified that he did not give Bennett authority to sell the lots in Ginny Lynn Acres and neither the bank nor Bennett was authorized to sell the property. He admitted endorsing the notes given by Whaley in connection with his purchase of the lots, 11 and 12, and also the notes given by J. E. Duffell and L. E. Robinson for purchase money given on lots in Ginny Lynn Acres. His explanation was that he endorsed the notes when they were in blank, and left them at the bank to be used in other transactions than the sale of the lots. In this connection, he related that he dealt in buying automobiles, trucks and contracting equipment; that the bank, of which Bennett was an officer, financed the transactions and kept blank notes endorsed by him, so that when a sale was made of his property the bank would fill in the notes for the purchase price signed by the purchaser, and then the bank would hold the same as collateral security for his indebtedness to the bank.
Aldridge denied that the conveyance of the lots to his daughter was voluntary. He gave as his version that his daughter and her husband bought other lots from him and paid for the same with some money and the husband's labor; that the house upon the lots purchased by her was destroyed by fire and that he gave her the lots involved in the case to compensate for her loss. The deed, he admitted, was made to his daughter about two years after the time the money was paid and the work was done by his son-in-law in consideration of the lots being conveyed to his daughter.
At the conclusion of the presentation of the evidence, the jury returned a verdict finding for the plaintiff. In accordance with the verdict, judgment was rendered declaring the deed between Aldridge and his daughter to be null and void, and decreeing title to lots 11 and 12 to be in the plaintiff. The defendants filed a motion for new trial on the general grounds and added additional grounds by way of amendment. To the judgment overruling the motion as amended the defendants excepted and brought the case here for review.
1. The assignment of error on the overruling of the general and special demurrers to the petition were not insisted upon in this court and must be treated as abandoned.
2. The plaintiff's evidence, while in conflict with that introduced by the defendants, amply supported the material averments of the petition. There is no merit in the general grounds of the motion for new trial that the verdict was without evidence to support it. Myers v. Adcock, 198 Ga. 180 (2) (31 SE2d 160)
; Hardin v. Snow, 201 Ga. 58 (5) (38 SE2d 836)
; Gay v. Mayor &c. of Lyons, 212 Ga. 438 (3) (93 SE2d 352)
; Burr v. Atlanta Paper Co., 2 Ga. App. 52 (4) (58 SE 373)
3. The first ground of the amended motion for new trial recites that, when a named witness was called by the plaintiff, counsel for the defendants, movants in the motion, moved the court to inquire as to the nature of the evidence the plaintiff proposed to introduce. The ground further relates that, upon the plaintiff's counsel stating the nature of the facts he hoped to show by the testimony of the witness, counsel for the defendants objected and contended such evidence would not be admissible. The ground alleges that the trial court erred in overruling the defendants' objection.
The objection did not challenge the competency of the witnesses through whose testimony the evidence in question would be introduced, but only the admissibility of evidence of the nature to which their testimony would relate. The ground does not set forth any of the evidence to which the objection was interposed, or indicate where in the record it may be found; in fact, it does not disclose that the evidence was actually adduced upon the trial. Hence, the ground is, according to Darden v. State, 208 Ga. 599 (1) (68 SE2d 559)
, and Toler v. State, 213 Ga. 12 (4) (96 SE2d 593)
, too incomplete to be considered.
4. Grounds 2, 3 and 4 of the amended motion for new trial assign as error the charge: "The law does not require that an agreement such as the plaintiff alleges was made in this case must be in writing in order to be enforced, and if you believe the plaintiff has carried the burden imposed upon him by the law of showing that the contract was made and he has complied with his part of it, the plaintiff is entitled to enforce such agreement wheilwr the contract was in writing or by word of mouth." The criticism made of the charge is that it is incomplete and incorrect in that it failed to instruct the jury that performance of a parol contract for the sale of land that will render the contract enforceable must be accepted by the seller.
According to the evidence submitted upon the trial, the plaintiff made the required initial payment and twenty-three instalment payments, which constituted the purchase price of the lots bought by him from the defendant Aldridge; the plaintiff went into possession of the lots and over a period of months made valuable improvements upon them in Aldridge's presence. This was such compliance as Code 37-802 requires to entitle a party to enforce a parol contract for the purchase of realty. In the case of Sikes v. Sims, 212 Ga. 391
, 392 (2) (93 SE2d 6
), is the pronouncement: "While payment of a part of the purchase money is not alone such part performance as will take the case out of the statute of frauds, if accompanied by possession it will amount to such part performance as will take the contract out of the statute of frauds." See also Black v. Black, 15 Ga. 445
; Kutash v. Gluckman, 193 Ga. 805 (20 SE2d 128)
5. Ground 5 of the amended motion for new trial excepts to the entire charge of the court because, as the movants contend, it failed to apply the law of agency to the facts of the case. What was omitted from the charge is not shown by the ground nor are the facts of the case therein referred to disclosed. The ground is so incomplete that it presents no question for review.
Ground 6 of the amended motion assigns error upon the failure of the trial judge to charge, without request: "Agency cannot be shown in the first instance by the declarations of the agent, but when the agency is prima facie shown, declarations of the agent are admissible in corroboration." The ground alleges that the desired instruction are pertinent and material to the issues of the case, but neither includes nor refers to any part of the record from which its relevancy or materiality appears. Thus, the ground is incomplete and insufficient to present a question for review. Calhoun v. State, 211 Ga. 112 (84 SE2d 198)
; Hicks v. Cherry, 193 Ga. 4 (3) (17 SE2d 60)
6. Grounds 7 and 14 of the amended motion for new trial are not referred to in the brief of the movant's counsel, who made no oral argument in this court. They must be treated as abandoned.
7. Grounds 8 to 13 inclusive complain of the admission into evidence of certain notes, checks and receipts. These instruments were connected with the sales by the defendant Aldridge to the plaintiff and other persons of lots in a subdivision or tract of land known as Ginny Lynn Acres. The parties to these transactions were called as witnesses and in the course of their testimony related the circumstances under which the documents were executed and their significance in the transactions with which they were connected. The witnesses described each of the documents. No objection to this testimony was interposed or exception taken to its admission. The rule of practice is that an exception to the admission of written evidence does not show harmful error where oral testimony as to the contents of the writings was admitted without objection. Baldwin v. Davis, 188 Ga. 587 (4) (4 SE2d 458)
; Seymour v. State, 210 Ga. 21
(2, 4) (77 SE2d 519
); Boyd v. Summer, 211 Ga. 700
(2c) (88 SE2d 411
Judgment affirmed. All the Justices concur.