Wilcox v. Sargeant

60 S.E. 810, 4 Ga. App. 35, 1908 Ga. App. LEXIS 189

Opinion

Russell, J.

1. The fact that the evidence would have authorized a larger recovery in behalf of the prevailing party in a case than the amount of the verdict affords no ground of complaint to his adversary. Gilmore v. Taylor, 3 Ga. App. 93 (59 S. E. 325); Ellis v. U. S. Fert. Co., 64 Ga. 571.

2. The rule that parol evidence is inadmissible to vary the terms of a written contract is not violated by the admission of parol testimony to the effect that a certain payment was made upon a different purchase than that mentioned in the bond for title.

3. There was no error in refusing a new trial, where the controlling issue of fact (as to whether a payment, alleged to have been made by the plaintiff, was a penalty or a forfeiture, or a partial payment on a purchase) was fairly submitted to the jury, and where evidence was submitted showing that it was a payment on a contract of sale which the defendant had failed to carry out, as well as evidence that it was a payment on a different transaction, in which the defendant had complied with all of his obligations. - Judgment affirmed.

Appeal, from Wilcox superior court — Judge Whipple. November 9, 1907.

Submitted September 4, 1907, Decided March 16, 1908. Hal Lawson, for plaintiff in error. Max M. Land, Walter F. Hall, contra.