Mitchell v. Owen

128 S.E. 12, 33 Ga. App. 665, 1925 Ga. App. LEXIS 667

Opinion

Per Curiam.

When this case was formerly before this court the judgment of the lower court was affirmed by a majority opinion. 31 Ga. App. 649 (121 S. E. 699). By writ of certiorari the case then went to the Supreme Court. Eor full opinion of the Supreme Court see 159 Ga. 690. The 3d headnote as written by the Supreme Court is as follows: “The ground of the petition designated as ‘{o)’ complains that the Court of Appeals erred, Cn holding and deciding that it was not reversible error for the trial judge to charge the jury that if the plaintiff breached the contract by refusing to make a deed at the time he was obligated by the contract to make it, but later tendered the deed, the measure of damages which the defendant might recoup against the plaintiff’s action was the difference between the value of the land on the date that the deed should have been made and its value at the time when the plaintiff tendered the deed.’ Under the facts of this case this rule, without qualification, was erroneous, and requires a reversal of the judgment refusing a new trial.” As a new trial necessarily results from this ruling, it is unnecessary for this court to pass upon the assignments of error not dealt with in the opinion of the Supreme Court in this case.

Judgment reversed.

Broyles, C. J., and Bloodworth and Luke, JJ., eonour.