1. Where a special verdict answering specific questions in an equity case is returned, a bill of exceptions assigning error upon the judgment overruling a motion for new trial, which fails to show that a decree based on the special verdict and fixing the rights of the parties in the case has been entered, is premature and will be dismissed by the Supreme Court, because the case is still pending in the trial court until such decree is entered.
(a) A judgment granting a motion for new trial in an equity case, where a special verdict has been returned, automatically sets aside and cancels a previous decree based upon such special verdict.
(b) Where a special verdict is returned in an equity case and a decree is entered, and a motion for new trial is filed, and it is sought to have this court review a judgment refusing a new trial. It is not necessary to except to the decree, in addition to assigning error on the judgment overruling the motion for new trial; but to give this court jurisdiction to review the judgment on the motion for new trial, it is sufficient to assign error on such judgment, and to show by a recital in the bill of exceptions, or by specifying therein the decree as a necessary record to be sent up, that a decree fixing the rights of the parties based upon a special verdict has been entered, thus showing that the case has terminated in the trial court. Lingo v. Rich, 169 Ga. 628 (151 S.E. 387); Henson v. Merritt, 193 Ga. 108 (17 S.E.2d 545); Griffin v. Smith, 197 Ga. 123 (28 S.E.2d 261); Williams v. Cross, 197 Ga. 295 (28 S.E.2d 924); Little v. Peterson, 197 Ga. 52 (28 S.E.2d 262), and other like cases, in so far as they hold to the contrary, are hereby expressly overruled.
(c) The fact that in the present case the decree was entered during the pendency of a motion for new trial and the existence of a supersedeas, specifically granted on the verdict, does not require this court to dismiss the writ of error on the ground that the decree as entered is void, since the question of jurisdiction is settled by the rule that, although a judgment excepted to is shown on the face of the record to be void, this court will not on that account dismiss the writ of error, but will reverse the case because of such invalidity of the judgment. The showing in the bill of exceptions that a decree has been entered is sufficient, irrespective of the validity or invalidity of such decree.
(d) The motion to dismiss the writ of error on the ground that no exception is made to a final decree within the time required by law is, under the rulings above made, denied, since error is assigned on the judgment overruling the motion for new trial, and the bill of exceptions specifies the decree as a necessary record to be sent up to this court.
2. Where, to a petition naming several defendants, one of the defendants specially demurs on the ground of misjoinder and multifariousness, but, before insisting on a ruling thereon, enters into a written stipulation with all the parties, which is made an order of the court, agreeing that the defendant is due from the petitioner a named sum on a loan account, and leaving for determination only the question whether the petitioner *Page 117 has sustained special damage, and in what amount, as alleged in the petition, by reason of the refusal of such defendant to advance the full amount of a loan of $16,000 under a contract alleged to have been entered into between the petitioner and such defendant, the defendant by thus accepting the benefits of the written stipulation as to being due the sum named and agreeing that the amount of the alleged special damage be determined as between it and the petitioner, notwithstanding the naming of other parties as defendants and the contention of the demurrant that such action could not be prosecuted because they had no common interest with it in the litigation, waived its right to insist on such special demurrer. Accordingly, the court did not err in thereafter overruling the special demurrer.
3. Under the allegations of the petition, the special damages sustained by the petitioner by reason of the refusal of the defendant lender to advance the amount of the loan contracted for were such as the jury might reasonably find to have been in the contemplation of the parties at the time the contract was entered into.
4. The paragraphs of the petition, alleging special damages because the failure of the defendant to advance funds contracted for rendered the attempted improvements and additions to the property of no value to the owner, untenantable, and of no rental value, were not subject to the grounds of special demurrer that the damages claimed were not in their nature recoverable. The allegation that, after such default by the defendant, it became impossible to obtain necessary materials to complete the work because of United States Government restrictions, and that, in consequence, the property must remain in its present condition for an indefinite time, was subject to the special ground of demurrer that it was immaterial and irrelevant on the question of damages.
5. The special demurrer to the allegations of the petition that the defendant association had agreed to lend the petitioner the sum of $16,000 for the purpose of improving and making additions to described property, which demurrer attacked the same as not fully setting out the nature and character thereof, is without merit, since the petition shows an agreement to lend money to be used for a specified purpose, and not a contract to build for another, and does not show that the contract to lend was conditioned on any plans and specifications requiring the approval of the lender.
6. Where, as here, suit was brought to recover special damages sustained by the refusal of the lender to advance the amount contracted for, and counsel for the defendant lender elicited, on cross-examination of a witness for the petitioner, testimony as to a verbal agreement to lend a total of $16,000, and then showed by such witness that the agreement was prior to or contemporaneous with a written contract between the parties, which when introduced showed terms wholly at variance with the testimony, the court erred in overruling the motion of counsel for the defendant lender, at the conclusion of all the evidence, to exclude the testimony of the witness on the ground that it contradicted or varied the terms of the written contract, since the defendant had the right to identify the contract relied on by the petitioner and then to show that it was inconsistent with the written contract between the *Page 118 parties. The question here presented does not involve merely a rule of evidence but a positive and substantive right of the defendant lender; and the general rule, that an answer which is responsive to a question asked by the party conducting the examination will not be ruled out although it would have been inadmissible if offered by the opposite party, has no application.
7. Two special grounds of the motion for new trial, complaining of a portion of the charge of the court as to reconciling any conflict between documentary evidence and the testimony of a witness or witnesses and as to the measure of damages on the theory that the contract was in parol, are controlled by the ruling in the preceding headnote and corresponding division of the opinion, and show reversible error for the reasons therein stated. Another special ground, complaining of the admission in evidence of a certain deed, is not argued or insisted on and will be treated as abandoned; and since the case is being reversed, it is deemed unnecessary to rule on the general grounds of the motion for new trial.
No. 14818. JULY 6, 1944. REHEARING DENIED JULY 18, 1944. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. Mrs. Albert Henderson, as trustee for Albert Henderson Jr., a minor, and as next friend for him, filed in the superior court of Dougherty County, Georgia, an equitable petition against Janie Eatman Williams, Albany Federal Savings Loan Association, a corporation. M. A. Studstill, F. W. Godwin, individually and as executor under the will of Mrs. Annie M. Godwin, and as trustee for "the parties named in" said will, Albert Henderson, individually and as executor and as trustee for "the parties named in" said will, any children to be born to Albert Henderson or F. W. Godwin, and any and all other persons who might claim any right, title, or interest under the said will. Mrs. Annie M. Godwin died testate, and her will was duly probated, a copy being attached to the petition as exhibit "A" and made a part thereof. Provisions of the will of Mrs. Godwin, in so far as material here, were as follows: "Item Three. I give and devise my home place, being the two-story brick dwelling where I now live and the lot on which the same is situated, to my beloved husband, F. W. Godwin, and my son, Albert Henderson, as trustee for his children born and to be born, to be held and enjoyed as follows: My said husband and son (trustee for his children) are to have the entire control and management of said property, and shall rent the same, pay all taxes, insurance, and repairs out of the rents accruing therefrom; and after *Page 119 the payment of said expenses and maintenance of said premises, the net proceeds from the rent of same shall be divided as follows: one-half (1/2) to my said husband, and the other half to be given to my said son in trust for the support of his said child or children and not subject to his individual debts — past, present, or future. If my said husband and son as trustee should agree, they may sell said property at private sale without the order of any court; but each shall reinvest his one-half (1/2) of the proceeds in other income-producing property upon the same uses and trusts as those specified in this item, and it shall be the duty of each to see that the other makes such reinvestment. The property in which such proceeds are reinvested shall be held upon the same uses and limitations as the said home place if it should not be sold. I further direct that the home place described in this item shall be kept intact for a period of two months after my death and either closed or used by my husband and son as a home. Should my son die without children, the title to the half interest given to my grandchild or grandchildren as aforesaid shall revert to my said husband, who from thenceforth shall hold the entire interest in said property; but should he die without children born to him, then said property shall revert to Janie Eatman Williams, who shall hold the same upon the uses and conditions hereinafter provided as to other property in Item Five of this will. . . Item Five. I direct the executors of this will either to sell at private sale, without advertisement and without order of any court or making any returns of such sales, or to retain as they may see fit, the two houses I now own on Madison and Flint Streets, and being a part of city lot No. 90 in said City of Albany, said State and County; and in the event of a sale to turn over the proceeds from such sale to my son, Albert Henderson, as trustee for his child or children born or to be born, and not to be subject to any indebtedness of said Albert Henderson; but should he be dead, then I direct that my said husband shall hold the income of the said two houses or proceeds from the sale of same, as trustee for said child or children of my said son, until the youngest child shall arrive at the age of 21 years, when he shall turn the same over to them, share and share alike; but while holding same as such trustee, he shall pay for the maintenance and support of said children, the net income derived from interest arising from the investment of said *Page 120 houses or funds each year as the same shall be received by him, so that my said grandson or grandchildren may receive annually the issues and profits from said sale or houses until they shall attain the age of 21 years, when the proceeds of said amount shall be paid to them by said trustee. Said property mentioned in this item to go to my said husband in the event of death of my son without child or children, and in the event of my husband's death without child or children born to him, the said property is to go to my niece, Janie Eatman Williams; provided that if my sister or sisters are surviving and are in need, my said niece shall divide the proceeds or income from said property equally between them and herself. . . Item Eight. In the event my said husband, F. W. Godwin, and my said son, Albert Henderson, shall die without children them surviving, then all of the property hereinbefore given to my said son in trust for his children born or to be born, as well as all the property given to my said husband, is to revert and vest in my niece, Janie Eatman Williams, upon the same conditions as those provided in Item Five of this will."
It was alleged that F. W. Godwin and Albert Henderson qualified and were duly appointed executors of the will and have legally assented to the devises and bequests therein. It is essential for the protection of the legacy made to Albert Henderson Jr., and for the protection and recovery thereof, that the will of Mrs. Annie M. Godwin be construed, and that the court give directions as to the rights and interests of the parties hereto under said will, and it is especially necessary to determine what interest Albert Henderson Jr. and the other beneficiaries take under Items 3, 5, and 8 of the said will. The defendant Albert Henderson, individually and as trustee for Albert Henderson Jr., and as executor under the said will, together with F. W. Godwin, individually and as trustee for Albert Henderson Jr., and as executors under the said will, made a deed to M. A. Studstill, conveying certain property located on the corner of Flint and Jackson Streets in the City of Albany, Dougherty County, Georgia, known as the "Godwin Home Place;" the said property being more particularly described in said deed, which was recorded in the office of the clerk of the superior court of Dougherty County in deed-record book 89, page 9, on September 4, 1941. The grantors hereinbefore named deeded to the same grantee the west one-fourth of city lot number 89, the said *Page 121 property being more particularly described in said deed, which was recorded in the office of the clerk of the superior court of Dougherty County, Georgia, in deed-record book 89, page 11, on September 4, 1941. On August 25, 1941, M. A. Studstill executed and delivered to the defendant, Albany Federal Savings Loan Association, a security deed on the property hereinbefore described to secure two notes, each for the sum of $8000. M. A. Studstill executed and delivered to Mrs. Albert Henderson, as trustee for Albert Henderson Jr., two deeds conveying the particular property described in the security deed to Albany Federal Savings Loan Association, being the property hereinbefore described. The deed so executed by M. A. Studstill to Mrs. Albert Henderson, as trustee for Albert Henderson Jr., conveying the property known as the "Godwin Home Place," was made and executed by the grantor to the grantee with the express understanding and agreement that the grantee would assume the obligation to Albany Federal Savings Loan Association and pay off the same and was to receive the money, the proceeds from said loan; and the grantor was to convey to the grantee all his rights, title, and interest in the contract with the said Albany Federal Savings Loan Association, together with all and any claim or right that he had or may have under and by virtue of said loan agreement; it being the intention and purpose that the grantee would stand in the place of the grantor in reference to the agreement, and have all rights that the said grantor had in the contract. After the execution of the deed, the grantee took possession of the premises and received the proceeds from the loan and exercised all rights over the same. In recognition of said agreement, and in an attempt to carry out the same, the grantor in said deed did execute to the grantee a transfer and assignment as shown in exhibit "B" attached to the petition. The deed, as reformed by the parties thereto, reads as shown by a copy thereof, which is attached to the petition and made a part thereof. The defendant, Albany Savings Loan Association, knew that neither the plaintiff nor Studstill could obtain the money or loan elsewhere and knew that the money was to be used for improvements and additions to the property referred to in the deed shown by the exhibit attached to the petition as just above mentioned. M. A. Studstill executed and delivered to Albert Henderson Jr. an assignment or conveyance of all his rights against Albany Federal *Page 122 Savings Loan Association, a copy of which is attached to the petition as an exhibit and made a part thereof. The loan was obtained from Albany Federal Savings Loan Association for the express purpose of improving and adding to the property located on the corner of Flint and Jackson Streets in the City of Albany, and this purpose was explained to it and was approved by it, and it retained the proceeds from the said loan, to be advanced as demanded by Albert Henderson. Albert Henderson, relying on the arrangements made for the $16,000, began to make improvements and additions to said property as contemplated by the parties, and after he had expended approximately $7500 and had made considerable progress on the additions and improvements on the said property, Albany Federal Savings Loan Association, without cause, declined and refused to furnish further money to continue the work on the property for the completion thereof, by reason of which all the expenditures made for the additions, as well as the improvements, to said property were of no value to the owner of the property, and the alterations and changes that were made on the improvements, being incomplete, made the same untenantable and destroyed the value of the property for rental purposes, whereas, had Albany Federal Savings Loan Association furnished the money in accordance with its agreement, the additions and improvements would have been completed, and the property would have had a substantial rental value of $400 per month, but by reason of the failure to furnish the money, as it was bound to do, the additions and improvements were not completed. Had it furnished the money as it was obligated to do, the additions and improvements to the property would have been completed not later than January 1, 1942, the addition consisting of four apartments of a reasonable rental value of $50 per month. By reason of the wrongs of Albany Federal Savings Loan Association hereinbefore alleged, and the delay incident thereto, it would be impossible to obtain material necessary to complete the improvements and additions because the Government has prohibited the sale of such material, and therefore the property must necessarily remain in its present condition for an indefinite time, which makes it of little or no value to the owner. Albany Federal Savings Loan Association, by reason of its misconduct above alleged, has damaged the petitioner in the sum of $7500, representing the difference in the *Page 123 value of material used and work done on said building in contemplation of the parties and the value of said improvements to the property, and in addition thereto $5000 representing the difference in the market value of the Godwin home located on said property before construction began and after construction was stopped. Said home prior to the beginning of the construction had a fair rental value of $100 per month, and after the stopping of said construction the fair rental of the property was $40 per month. In the present status of the title with the outstanding security deed, it is impossible for the petitioner to borrow on the property or to sell the same because it constitutes a record lien on the property in the amount of $16,000, which casts a cloud on the title, which should be removed or restricted to the amount lawfully due, if any, to Albany Federal Savings Loan Association under the allegations of the petition. The petitioner tried to borrow money on the property in order to complete the improvements contemplated, but was unable to do so. To determine the interest of Albert Henderson Jr. in the property and the authority of the executors and trustees, it is necessary that the court construe the will of Mrs. Annie M. Godwin. Under the facts set forth herein, and in order to protect the interest of Albert Henderson Jr., it is necessary to determine what amount is due and what property is subject to the lien of the deed. The petitioner stands ready and willing to pay to Albany Federal Savings Loan Association any and all amounts that may be a lien or claim on the property described in the security deed and due it under the allegations herein, and tenders the same into court and makes this a continuing offer. Petitioner should be allowed to set off or recoup, against whatever amount may be found due on the obligation secured by the security deed, the damages caused Albert Henderson Jr. by reason of the wrongful acts of Albany Federal Savings Loan Association hereinbefore complained of. Petitioner has no adequate remedy at law.
By amendment, certain original allegations, attacking and calling into question the validity of the security deed from M. A. Studstill to Albany Federal Savings Loan Association and the title under which Studstill claimed, were stricken, so that all of the property mentioned in the deed was to be considered subject to sale under the deed for any amount found to be due on an accounting *Page 124 between the petitioner and Albany Federal Savings Loan Association, which was agreed to be the sum of $7657.88 as of June 8, 1942, and which was to bear interest from said date at six per cent. per annum, less any damages that might be found due by virtue of the alleged breach of the contract made between Studstill and said association. It was further alleged that the said security deed is valid and legal and is binding on all parties interested in the property described therein, and especially those mentioned as beneficiaries in the will of Mrs. Annie M. Godwin, and the security deed creates a lien on the property described therein for any amount that may be ultimately due said association as provided in an order of court dated June 27, 1942, a copy of which is attached to the petition as an exhibit. (This exhibit shows an order of court providing that, pending a hearing on the question of granting an interlocutory injunction and in pursuance of agreement of all parties, petitioner should amend her pleadings as shown above; that, until a final decree be entered in the case, no sale of the property should be made; and that, as to any amount found to be due Albany Federal Savings Loan Association, the court should enter a decree that the property embraced in the security deed be sold in satisfaction thereof.)
The prayers of the petition as amended were: (a) that the court construe the will of Mrs. Annie M. Godwin, and determine the interest, title, and authority of the trustees and executors named therein and the interest of Albert Henderson Jr. in said property; (b) that damages caused the petitioner by reason of the wrongful acts of Albany Federal Savings Loan Association be determined and set off against whatever amount may be found to have been advanced by it (the amount advanced having been finally agreed upon as $7657.88 as of June 8, 1942, with interest at six per cent. per annum); (c) that Albany Federal Savings Loan Association be enjoined from suing on the notes referred to in the petition and from foreclosing the security deed or proceeding under any power or any other method to dispose of the property and from changing the status of the notes and security deed in any manner whatsoever; (d) that a guardian ad litem be appointed for the unborn children of F. W. Godwin, Albert Henderson, and any and all other persons who might claim any interest, right, or title under the will of Mrs. Annie M. Godwin; (e) for judgment; *Page 125 (f) for such other and further relief as to the court may seem meet and proper; (g) for process.
By amendment, it was shown that Albert Henderson Jr. had become of age since the filing of the original petition, and it was requested that he be made a party petitioner in his own right in said suit. He was accordingly made such a party by order of the court.
Albany Federal Savings Loan Association filed an answer admitting that Mrs. Annie M. Godwin died testate, that her will was probated, that F. W. Godwin and Albert Henderson qualified as executors and assented to the devises under the will, executed deeds conveying the property described in the petition to M. A. Studstill, and that Studstill executed a security deed conveying said properties to Albany Federal Savings Loan Association as security for two notes, each for $8000; but alleged that only one of the notes ever became effective according to its terms, and that the security deed accordingly became effective only as to one of the said notes. it admitted that it agreed to lend $8000 for the purpose of making certain improvements on and additions to the Godwin home, but denied that the loan actually agreed to be made was the sum of $16,000, and that it retained the proceeds from the loan to be advanced as demanded by Albert Henderson; and alleged that it finally agreed upon a loan of $8000 only, and that in fact it turned over the net proceeds thereof to Leo Leader, as trustee for M. A. Studstill, to be paid out as the work progressed on the additions and improvements to said property; and denied that it had breached its contract with Studstill, and that it had damaged the petitioner in any sum. It also denied the allegations of the petition to the effect that the present status of the title to the property, with the outstanding security deed thereon, made it impossible for the petitioner to borrow on said property or to sell the same; and denied that, as alleged in the petition, in order to determine the interest of Albert Henderson Jr. in said property, and to protect and recover the same, it was necessary for the court to construe the will of Mrs. Annie M. Godwin. For want of sufficient information, it declined to admit or deny the allegations of the petition to the effect that Studstill executed and delivered a deed conveying said property to Mrs. Albert Henderson, as trustee for Albert Henderson Jr., and the allegations to the effect that he *Page 126 executed and delivered an assignment of all of his rights against Albany Federal Savings Loan Association.
Albert Henderson and F. W. Godwin filed a joint answer, in which they joined in the request of the petitioner for a construction of the will of Mrs. Annie M. Godwin, alleging that it was necessary in order to determine the interest of the beneficiaries, Albert Henderson Jr. and Janie Eatman Williams, F. W. Godwin, and Albert Henderson; and also to determine the authority of the executors and trustees to handle, manage, or dispose of the property mentioned in the will. They further alleged that such construction and directions were necessary because "in distributing and managing the estate they can not determine, (a) the extent of their authority as executors and trustees, and (b) nor can they ascertain the person entitled to the property and the interest of each beneficiary, to wit, Albert Henderson Jr., Janie Eatman Williams, F. W. Godwin, and Albert Henderson, in each piece of property devised by said will."
M. A. Studstill filed an answer, in which he joined with the petitioner in requesting the court to determine the authority of the executors and trustees to handle or dispose of the property under the will of Mrs. Annie M. Godwin, alleging that Albany Federal Savings Loan Association breached its contract with him as set forth in the petition, by reason of which he or his transferee has been damaged in the manner and amount set forth in the petition as amended, and that all transactions between him and the trustees under the will of Mrs. Annie M. Godwin and with Albany Federal Savings Loan Association and Albert Henderson Jr., were bona fide and in good faith. He prayed that: (a) the deed from the trustees to Albany Federal Savings Loan Association be declared a valid and binding deed, conveying a fee-simple interest in said property to him; (b) that the security deed from him to Albany Federal Savings Loan Association be declared a valid security deed; (c) that the deed from him to Mrs. Albert Henderson, as trustee for Albert Henderson Jr., be declared a valid deed conveying a fee-simple interest in the property described therein to the grantee; (d) that the assignment or transfer by him to Albert Henderson Jr., a copy of which is attached to the petition, be declared valid, and, if invalid, that all of the rights of the defendants by virtue of the breach of the contract referred to therein be *Page 127 determined in the litigation; (e) that the amount found to be due by reason of the breach of the contract between him and Albany Federal Savings Loan Association be determined; and (f) that a proper judgment, under the facts in the case, be rendered.
The defendant, Janie Eatman Williams, filed no pleadings. The defendant, Albany Federal Savings Loan Association, filed general and special demurrers to the original petition and to the petition as amended. The demurrers were overruled, and exceptions pendente lite thereto were duly filed and certified.
Pending the hearing on the question of granting an interlocutory injunction, the parties entered into an agreement, which, on June 27, 1942, was made an order of the court, and by which the pleadings were to be amended, and the amount due to the defendant association on the loan contract was agreed upon. The agreement and order are referred to in detail in the petition as amended, and the court in pursuance thereof subsequently directed the jury to return a verdict in favor of the defendant association, which was as follows: "We agree on verdict directed by the court for $7657.88 for the defendants, with interest from June 8th, 1942, at six per cent."
The only ruling requiring a consideration of the evidence in the case is that made in division 6 of the opinion; and the evidence necessary for a proper understanding of that ruling is substantially as follows:
Albert Henderson, who represented M. A. Studstill and his transferee throughout the transactions, testified on direct examination that he was present when Studstill entered into the loan contract with the defendant association, and that an application was made. He identified a "loan settlement," subsequently introduced in evidence, and stated that "that is the way it was to be set up." He further testified that when that was agreed to, the plans were already in the office of the association, and that he started to work four or five days later; that he was told by Mr. Leader, secretary and treasurer of the association, that the specifications were all right, and to go ahead; that during the progress of the work Leader inspected it each week and made no complaint as to what was being done; that on February 18, 1942, he was advised by letter that no further funds would be advanced; and that he made unsuccessful efforts to borrow the necessary money elsewhere and *Page 128 so reported to Mr. Leader, but got no answer and had to abandon the work. He further testified that all of the money advanced by the association was spent on the property; that he spent about $2000 of his own money besides, making a total of $9500; that the improvements made can not be used for any particular purpose in the present condition; and that the house is not rentable, whereas it previously had sixteen rooms in good condition. On cross-examination he testified that, while at one time the construction of a four-unit apartment in the rear of the property had been under consideration, the plan had been abandoned; that, when the loan of $16,000 was contracted for, it was for changes in the Godwin home and the construction of a four-unit apartment in the front thereof, the plans for such apartment being the same as originally contemplated except that the apartment was to be reduced in size when placed in front of the house; and that these plans had been approved by Mr. Leader and were in his office when the contract was made for the loan. Counsel for the association then showed by the witness that the verbal agreements testified to were not made subsequently to a written contract, but were prior to or contemporaneous with it.
The following documents were introduced in evidence:
An application by M. A. Studstill to Albany Federal Savings Loan Association for a loan of $16,000, offering as security therefor lots 50, 52, 54, and 56 on Flint Street, and lot 89 on Pine Street, in Albany, Georgia, with the following statement: "Present Godwin home at 229 Jackson Street to be converted into a 4-unit apartment, besides leaving living quarters in the rear, making 5 units altogether," with the further description of house, "home and 4 units." At the top of this application was an appraisal of the property, containing the following statement: "This valuation covers the Godwin home only and is for $8000 loan. 2nd note for $8000 is for 4-unit apartment to be erected, if and when approved;" the application being dated August 25, 1941.
A loan-settlement statement by Albany Federal Savings Loan Association, addressed to M. A. Studstill, dated August 25, 1941, and reciting: "Your application for a real-estate loan has been approved, and we submit herewith for your information the terms of the loan, and the expenses thereof, whether charged to you by the association, paid for by you by the association, or paid *Page 129 by you to some person other than the association. $8000 immediate advance; $8000 for advance if plans for apartment approved. . . Loan disbursements made or to be made by the association on your order: Check to yourself and endorsed to Leo Leader, to be paid out as work progresses on the change of the Godwin home into a 4-unit apartment — $7825. Check to yourself, endorsed to Leo Leader, and to be paid out as work progresses on 4-unit apartments to be erected on apt. No. 56 and rear of No. 54 if finally approved — $8000." Following the name, Albany Federal Savings Loan Association, the signature of M. A. Studstill appears under the following acknowledgment: "The undersigned acknowledges the receipt of this loan-settlement statement, and agrees to the correctness thereof, and authorizes and ratifies the disbursement of the funds as stated therein." This signature bears date of August 25, 1941.
Letter from Albert Henderson, dated September 1, 1941, to Leo Leader, trustee, reading: "For the sum of $8000 I propose to make the following changes and additions to that property known as the Godwin Home place, corner of Jackson and Flint Street, being No. 229 Jackson Street, Albany, Ga., as follows: Build 4 separate apartments in front of the present structure, each one complete with separate bath, kitchens, living room, dinette, 2 bedrooms. I propose to change the rear of the present structure so as to make living quarters of 8 rooms, being 4 rooms downstairs and 4 rooms upstairs, 1 bath upstairs, toilet and lavatory downstairs, entrance to be from Flint Street."
Two notes, dated August 25, 1941, signed by M. A. Studstill, each in the sum of $8000, in one of which appears the following provision: "The amount as represented by the within note being for a proposed 4-unit apartment to be erected. The said Albany Federal Savings Loan Association reserves all rights not to advance the funds represented hereby unless and until the plans for said apartment and the specifications thereto belonging are approved by said association."
The parties having entered into a written agreement, which was made the order of the court, that the amount due Albany Federal Savings Loan Association was $7657.88 as of June 8, 1942, with interest therein at six per cent., the court, by agreement of the parties, submitted to the jury specific questions, as to whether the *Page 130 agreement with Albany Federal Savings Loan Association was for a loan of $16,000 or $8000; and if for $16,000, whether or not the petitioner had been damaged by the refusal of Albany Federal Savings Loan Association to lend the full amount of $16,000. On March 26, 1943, the jury returned a special verdict finding that the loan was for $16,000, and that the petitioner had been damaged in the sum of $4000. On April 6, 1943, Albany Federal Savings Loan Association filed a motion for new trial on the usual general grounds, and by amendment added several special grounds; and when the motion was filed, a supersedeas was specifically granted "until the further order of the court." On April 17, 1943, the court entered a decree in favor of Albany Federal Savings Loan Association for $3657.88 with interest at six per cent. per annum from June 8, 1942, the principal sum being the difference between the amount agreed upon as being due Albany Federal Savings Loan Association for advances on the loan account and the amount of $4000 damages to the petitioner as found by the jury. The court also decreed as valid the deeds here involved; that Albert Henderson Jr., having reached his majority before the trial of the case, the trust created in the deeds from M. A. Studstill to Mrs. Albert Henderson as trustee for him had become executed; that, subject to the security deed executed to Albany Federal Savings Loan Association, the title of Albert Henderson Jr. to the property therein described is decreed and established as a good and fee-simple title against Albany Federal Savings Loan Association or any other party or parties to the case; that the judgment in favor of Albany Federal Savings Loan Association is declared to be a special lien upon the property described in the security deed executed to it; that upon payment of the amount by Albert Henderson Jr., or any party in his behalf, Albany Federal Savings Loan Association shall deliver to him, or his agent, all notes, security deed, and evidence of indebtedness held by it in reference to the said loan, said papers to be marked paid; and that the costs in the case are fixed as one-half against Albert Henderson Jr., and one-half against Albany Federal Savings Loan Association. The hearing on the motion for new trial was by appropriate orders continued from time to time until a hearing on August 31, 1943. On November 29, 1943, the court entered an order overruling the motion. In a bill of exceptions filed on December 28, 1943, Albany *Page 131 Federal Savings Loan Association assigned error on exceptions pendente lite to the judgment on March 22, 1943, overruling its general and special demurrers; and also assigned error as follows: "To which action, order, and judgment of the court overruling said motion for new trial and entering a judgment and decree as aforesaid in favor of this defendant for the sum admittedly due it, less the damage found by the jury against this defendant, the defendant and movant excepted and now excepts and assigns the same as error as being contrary to law for each and every reason set forth in said motion for new trial." 1. Where a special verdict answering specific questions in an equity case is returned, a bill of exceptions assigning error upon the judgment overruling a motion for new trial, which fails to show that a decree based upon the verdict and fixing the rights of the parties in the case has been entered, is premature and must be dismissed by the Supreme Court, because the case is still pending in the trial court until such a decree is entered. McGowan v. Lufburrow, 81 Ga. 358 (7 S.E. 314); Heaton v. Haisten, 143 Ga. 589 (85 S.E. 765);Smith v. Board of Education, 166 Ga. 535 (143 S.E. 578). This rule stands upon the solid reason that, since the complaining party in the motion does not suffer injury unless a decree against his interest is entered, he is not entitled to complain until this adverse ruling has been made. It also stands upon the firm foundation of statutory law, which requires that, before a case can be reviewed by the Supreme Court, it must have terminated in the trial court, or that, if the ruling had been made as contended for, it would have terminated. Code, § 6-701. However, neither the foregoing decisions nor the statute requires that such decree be excepted to in order that a judgment on a motion for new trial may be reviewed by a bill of exceptions to the Supreme Court, assigning error thereon. The thought has been suggested by counsel for the plaintiff in error that in such a case the trial court might enter a judgment granting the motion for new trial, and thus present the question as to whether or not there exists a sound reason for requiring the respondent to except to a decree that is wholly favorable to his interest, in order that he may obtain a review by the Supreme Court of the judgment adverse *Page 132 to his interest in the grant of a new trial. Such a requirement would obviously impose upon an attorney the necessity of assuming an inconsistent and indeed a ridiculous position, would breed confusion and uncertainty, and would contribute nothing in aid of the administration of justice or an intelligent adjudication of litigated issues. Putting aside theoretical considerations and directing attention squarely to the question here presented, it is perfectly obvious that no meritorious reason exists for requiring an exception to the decree as a condition precedent to a review of the judgment on the motion for new trial. The decree in this case was not and could not, under the law, be a final judgment terminating the case in the trial court, since at the very instant it was signed the law to which it was subject conferred upon the parties the indisputable right to have reviewed by a motion for new trial, not only the verdict, but all questions of law embraced in the amendment to the motion. This law caused the case to remain a pending case so long as this right continued to exist. The decree does not purport to deal with, nor could it lawfully have dealt with, adjudicated, or settled a single one of the questions embraced in the amended motion for new trial. It left those questions undecided, and, hence, pending until decided in the manner prescribed by law, to wit, by a judgment granting or denying the amended motion for new trial. Those questions constituted the entire case remaining in the trial court after the decree was entered, and the judgment overruling the motion for new trial was the final judgment in the case, adjudicated those questions, and terminated the case, and, hence, was reviewable by the Supreme Court by a bill of exceptions under the Code, § 6-701. Doubtless this court gave no consideration to the matters just discussed when rendering the decision in Lingo v. Rich, 169 Ga. 628 (supra). That decision apparently was placed upon an erroneous construction of the decisions cited in support of the ruling. It was there held, all the Justices concurring, that a bill of exceptions, assigning error upon a judgment overruling a motion for new trial where a special verdict had been returned, must be dismissed because it failed to except to the final decree entered therein, based upon the special verdict. The opinion advances no argument to sustain the ruling, and neither does it state a reason which the court thought justified the ruling. It merely announces the rule and cites in support thereof McGowan *Page 133 v. Lufburrow, supra, Atlanta National Building c. Assn. v.Jones, 111 Ga. 890 (36 S.E. 968), Heaton v. Haisten, supra, and Smith v. Board of Education, supra, none of which decisions, in our opinion, support the ruling made. That decision, concurred in by all the Justices, has the force and effect of a statute. Code, § 6-1611, Lucas v. Lucas, 30 Ga. 191,202 (76 Am. D. 642); Heard v. Russell, 59 Ga. 24, 54;Hagan v. Asa G. Candler Inc., 189 Ga. 250, 258 (5 S.E.2d 739). It is binding upon this court until reviewed, after argument, and overruled by a decision concurred in by all six of the Justices. Therefore, acting under and in obedience to this rule of law, this court followed and applied the ruling made inLingo v. Rich, supra, and dismissed the bill of exceptions, because of the failure to except to the final decree where a special verdict had been returned, in Henson v. Merritt,193 Ga. 108 (see correction in 194 Ga. 882), Griffin v.Smith, 197 Ga. 123, Williams v. Cross, 197 Ga. 295, andLittle v. Peterson, 197 Ga. 52 (supra).
So long as the cases presented the simple question of failure to except to a final decree, since this requirement in such cases appeared to impose no particular hardship, no serious complaint was heard by this court; but the present case presents facts that will not readily yield to the simple treatment of merely excepting to the decree. The decree here was entered about eight months before the motion for new trial was overruled. It was excepted to only in a bill of exceptions taken to the judgment overruling the motion for new trial. These facts immediately brought into the case the statutory requirement that exceptions to any judgment, sentence, or decree, etc., be filed within 30 or 60 days, according to the circumstances, from the date thereof. Code, § 6-902. The fact that the case was still pending because of the motion for new trial, raises the question as to whether or not the decree was interlocutory, and, hence, must be excepted to pendente lite as provided in the Code, § 6-905, and also the unusual significance attributed to a supersedeas by this court, on a rehearing in Lingo v. Rich. Furthermore, during the time we have had this case under consideration, motions to dismiss have been filed in a number of other cases pending in this court, based upon the ruling in Lingo v. Rich. It thus appears that there is among the lawyers throughout the State a general lack of understanding of the rule there applied. We have also found a large number of cases where this court ruled *Page 134 upon the merits of the bills of exceptions, assigning error only upon a judgment overruling a motion for new trial where a special verdict had been returned. No exception was taken to the decree based upon the special verdict. Of course, as against an attack on the judgments of this court as settling the rights of the parties, as there presented for adjudication, a presumption of law exists that in those cases this court of its own motion considered the question of its jurisdiction, and as between the parties the decisions became binding as the law of the case. But this presumption of law does not have the effect of clothing these judgments with the character of judicial precedents which, under the principle of stare decisis, bind this court in subsequent cases, where an issue is squarely presented in a motion to dismiss the writ of error because no timely assignment of error on a final decree is made in the bill of exceptions brought to this court. As was said in Webster v. Fall, 266 U.S. 507,511 (45 Sup. Ct. 148, 69 L. ed. 411); "Counsel for appellant directs our attention to other cases, where this court proceeded to determine the merits notwithstanding the suits were brought against inferior or subordinate officials without joining the superior. We do not stop to inquire whether all or any of them can be differentiated from the case now under consideration, since in none of them was the point here at issue suggested or decided. The most that can be said is that the point was in the cases if anyone had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents." See also United States v. Mitchell, 271 U.S. 9, 14 (46 Sup. Ct. 418, 70 L. ed. 799); Gargilis v. Gleavy, 45 F. Supp. 721; Schram v. Robertson, 111 F.2d 722. Yet, in the Georgia cases which, as we have stated, were before this court and the merits were decided, although error was assigned only upon a judgment overruling a motion for new trial where a special verdict had been returned, a lack of understanding by the bench and bar is manifested as to the ruling in Lingo v. Rich. Considering all of these factors, we have concluded that the rule applied in Lingo v.Rich, and followed in Henson v. Merritt, Griffin v. Smith,Williams v. Cross, and Little v. Peterson, contributes nothing to the administration of justice, to sound adjudication of cases, or to the interest of litigants, but that the ruling in each case is a stumbling *Page 135 block on which the merits of the cases are made to fall. Being so, and having its origin only in the decisions of this court, its perpetuation can not be justified. Therefore, pursuant to our authority and in fulfillment of our duty, we have, after giving notice to the parties as required by law, carefully reviewed the decisions in Lingo v. Rich, Henson v. Merritt, Griffin v.Smith, Williams v. Cross, and Little v. Peterson, supra, and hereby expressly overrule each of these cases in so far as they rule that, where a special verdict is returned, a bill of exceptions assigning error on a judgment granting or denying a motion for new trial must be dismissed if it fails to except also to a decree fixing the rights of the parties based upon the special verdict. A judgment granting a motion for new trial, in a case where a special verdict has been returned, automatically sets aside and cancels the decree previously entered, based upon such special verdict. Sharp v. Findley, 71 Ga. 654;Holston Box c. Co. v. Vonberg, 160 Ga. 813 (129 S.E. 92). If the decree can thus be absolutely set aside, why encumber the record by requiring a direct attack upon such decree?
For the purpose of making perfectly clear the procedure in cases where special verdicts are returned, and it is sought to review a judgment overruling the motion for new trial, we undertake now to state to what extent reference to the decree is required. There need be no exception to the decree, but, under the decisions and the statute above referred to, it must be made to clearly appear by a recital in the bill of exceptions, or by specifying therein the decree as a necessary record to be sent up, that a decree fixing the rights of the parties based upon a special verdict has been entered, and, hence, that the case has terminated and is no longer pending in the trial court. The motion to dismiss the bill of exceptions, under the authority ofLingo v. Rich, Henson v. Merritt, Griffin v. Smith,Williams v. Cross, and Little v. Peterson, is denied.
This record shows that the decree was entered subsequently to the grant of a supersedeas and during the time when the supersedeas was of force. It thus appears that, under the ruling in Tanner v. Wilson, 184 Ga. 628 (192 S.E. 425), the court was without jurisdiction to enter the decree, and that for this reason the decree is void. For these reasons only, we have, on our own motion, considered whether or not the bill of exceptions should be *Page 136 dismissed since it fails to show a termination of the case in the trial court by a valid decree. Does the plaintiff in error carry the burden placed upon it of showing termination of the case in the trial court by showing a decree void on its face because of lack of jurisdiction of the court to render the same? Without here approving the ruling made in the Tanner case, we think that the question of our jurisdiction is settled by the rule that, although a judgment excepted to shows on its face it is void, this court will not on that account dismiss the bill of exceptions, but will reverse the case because of such invalidity of the judgment. Walker v. Banks, 65 Ga. 20; Pope v.Jones, 79 Ga. 488 (4 S.E. 860); Castleberry v. State,68 Ga. 49; McDonald v. Farmers Supply Co., 143 Ga. 552, 557 (85 S.E. 861). The bill of exceptions, showing that a decree has been entered by the trial court, is sufficient, irrespective of the validity or invalidity of such decree.
2. The general grounds of the demurrer have been abandoned, the plaintiff in error stating in its summary of the petition in its brief that. "Hence, the plaintiff set out a cause of action against the defendant association for a breach of a contract to loan money." Special demurrers, except those hereinafter dealt with, are not argued on insisted upon and will not be ruled on. Special demurrers are urged to the petition on the grounds of misjoinder and multifariousness; it being contended that the parties defendant other than the defendant association have no common interest with the association in the litigation, and that for stated reasons their interests are antagonistic to its interest, and that different causes of action are set forth in the petition. It appears from the record, however, that under date of June 27, 1942, the court, pursuant to agreement "of all parties hereto," entered an order that the association was due under the loan contract the sum of $7657.88 as of June 8, 1942, with interest from said date at eight per cent. per annum, less any damages that may be found due the petitioner by virtue of any alleged breach of the contract; and that subsequently, on March 22, 1943, the court entered an order overruling all of the demurrers; and that, on the trial of the case, the only questions submitted to the jury were, as to specific facts, whether the loan agreement was for $8000 or for $16,000, and, if the latter, whether the petitioner was damaged by the failure of the association to advance the full amount of $16,000, and if so in what sum. *Page 137 In Americus Grocery Co. v. Brackett, 119 Ga. 489 (7) (46 S.E. 657), it was held: "Where a defendant files a special demurrer, and without insisting on a ruling thereon goes to trial on the issue raised by the petition and answer, he thereby waives any rights under the demurrer." The principle of law there ruled is controlling here for the reason that the defendant association by accepting the benefits of the written stipulation as to being due the sum named, and agreeing that the amount of the alleged special damage be determined between it and the petitioner, notwithstanding the naming of other parties as defendants and the contention of the demurrant that such action could not be prosecuted because they had no common interest with it in the litigation, as effectually waived the right to insist on such special grounds of demurrer as to misjoinder and multifariousness as if it had gone to trial without insisting on the same. Accordingly, the plaintiff in error can not now be heard to complain of the overruling by the court of these special grounds, after making the stipulation.
3. The association specially demurred to the allegations that the petitioner had been damaged in the sum of $7500 for labor and material used on the building and additions thereto, in contemplation of the parties to the contract, and also $5000, representing the difference between the market value of the property before the construction work was begun and after it was stopped for lack of funds, the objection being that the allegations do not set forth the proper measure of damages, and that the damages claimed are not recoverable. It is properly contended that as no recovery was sought for nominal damages, or for damages representing the difference between the amount of interest at a lawful rate on any sum borrowed elsewhere and the amount of interest contracted for on a similar amount of principal, the only damage recoverable would be special damage, if any, by reason of the labor and material used in the construction, together with the difference between the market value of the property before and after the attempted improvements and additions were made. In respect to the latter element of damage, it is contended that recovery can not be had, because such damages were not reasonably in the contemplation of the lender; and that, while the petition alleged that the lender knew that the petitioner would not be able to obtain the money elsewhere if it was not advanced on the contract, it was not alleged *Page 138 that the lender had such knowledge at the time the contract was entered into; and that in legal contemplation, money being always available in the market and procurable at a lawful rate of interest, it is to be presumed that the parties contracted with such an expectation in mind. The exact language of the allegation as to knowledge is, that "plaintiff alleges that defendant knew that neither plaintiff nor Studstill could obtain the money elsewhere, and that defendant knew the money was to be used for improvements and additions to the property," etc. While a special demurrer may serve the purpose of requiring the pleader to amplify or explain allegations so as to enable the defendant to properly prepare a defense, its use should not be extended to a situation where the defendant is, by the allegation demurred to, sufficiently informed as to a particular fact. The allegation here shows that the defendant association knew that the money was to be used for improvements and additions to the property. In other words, the money had not been advanced at the time the defendant became aware of the purpose of the loan. Hence, in the context here, the allegation that the defendant knew that the money (the same money that "was to be used," etc.) could not be obtained elsewhere where could reasonably be construed to mean only that the defendant had such knowledge at the time of the contract referred to in the petition. But, as we shall demonstrate, whether or not special damages may be recovered in a case such as here presented, where the money could not in fact be obtained elsewhere, is not dependent upon whether or not the contracting lender knew of such inability, inasmuch as the fact of being able or unable to borrow money elsewhere goes only to the question of diligence in reducing or overcoming the special damage which arises upon the failure of the lender to advance the full amount of the loan. It may safely be asserted that, under the facts alleged, a jury would be authorized to find that, in the unfinished state of the improvements and additions to the property, the petitioner sustained damages at the moment the lender refused to advance the remainder of the loan. The fact of damage at that moment was unaffected by any contingency of being able to borrow money elsewhere. Whether or not the damage remained constant, would depend upon whether or not by ordinary diligence the petitioner would be able to borrow money elsewhere and thus reduce or eliminate the damage. *Page 139
We do not find any case decided by this court as to the measure of damages where a borrower has sustained special damages by reason of the failure or refusal of the lender to furnish money as agreed for use in improving or reconstructing a building. The general rule as to damages for breach of contract is found in the Code, § 20-1407, which provides that, "Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach;" and § 20-1406, which provides that, "Remote or consequential damages are not allowed whenever they can not be traced solely to the breach of the contract, or unless they are capable of exact computation, such as the profits which are the immediate fruits of the contract, and are independent of any collateral enterprise entered into in contemplation of the contract." The rule as to recovery of special damages for a breach of contract is stated in 15 Am. Jur. 466, § 62, as follows: "On breach of a contract to loan money where special circumstances were known to both parties from which it must have been apparent that special damages would be suffered from a failure to fulfill the obligation, such special damages as may appear to have been reasonably contemplated by the parties are recoverable. Thus, special damages may be recovered where the money is to be used for a particular purpose which is known at the time to the party agreeing to make the loan, provided, of course, that such damages are not speculative or remote." See also 25 C. J. S. 585, § 79. In Anderson v. Hilton DodgeLumber Co., 121 Ga. 688 (49 S.E. 725), where, to a proceeding to foreclose a mortgage, the mortgagee defended by a counter-affidavit and sought to recover damages for a breach of contract to lend money for the operation of a sawmill, this court, while holding that the allegations were not sufficient to authorize recovery, stated: "There have been cases in which such suits have been maintained, but they are extremely rare, and, in view of the nature of money, must be. The price of money is the principal and the legal or contract rate of interest. Hence the circumstances must be peculiar in which a person is entitled to damages because of a failure to lend as promised. No injury will flow from such a breach if the same amount can be borrowed from another on the same terms. . . And it must be made to appear that the borrower *Page 140 had been unable to obtain a like sum upon like terms. It would further be necessary to show definitely and distinctly that the damage (other than that arising from having to pay a higher rate of interest) was in contemplation of the intending lender at the time he made the agreement to lend." In the ordinary engagements to borrow money, where the purpose for which the money is to be used is not disclosed to the lender, a recovery of damages would, of course, be limited to the difference between the amount of interest at a lawful rate upon the amount necessary to be procured elsewhere and the amount of interest at the lawful rate contracted for. If the borrower, after the breach, be able to obtain the necessary amount elsewhere, at the same rate of interest as contracted for originally, so as to complete the project, no special damage could be said to have been permanently sustained by reason of the breach. Here, the petitioner was unable to obtain money elsewhere, though he endeavored to do so, in consequence of which the special damages set forth in the petition could not be reduced or eliminated. These special damages are such as might reasonably be found by the jury to have been in the contemplation of the parties at the time the loan was contracted for, because the pleadings show that the agreement was to lend money for the express purpose of adding to and improving the identical property to which the damage is related; and, accordingly, such special damages are recoverable, and the ground of demurrer is without merit.
4. Several special grounds of demurrer were urged to paragraphs of the petition alleging in substance that the failure of the defendant association to advance funds under the contract to complete the improvements and additions to the property rendered the same of no value to the owner, untenantable, and of no rental value, and that by reason of these facts the petitioner is entitled to recover $7500 for labor and materials used in the attempted improvements and additions, and $5000 as the difference between the market value of the property before the work was begun and after it had to be stopped. It is contended that damages of the character sued for are not recoverable. For reasons stated in division 3 of the opinion, the damages claimed are of such character as to be recoverable, and the special demurrers are without merit. Another special ground of demurrer urges that the allegation, that after the failure of the association to advance the funds contracted for it *Page 141 became impossible to obtain the necessary materials to complete the work because the United States Government had prohibited the sale of the materials, and the property must in consequence remain in its present condition for an indefinite time, is immaterial and irrelevant on the question of damages. Since, even if the materials were available, the petitioner, being unable to borrow the necessary funds, would not be able to purchase them, such allegation is immaterial and irrelevant and should have been stricken on demurrer.
5. The allegations of the petition, that the defendant association had agreed to lend the sum of $16,000 for the purpose of improving and making additions to the property, were specially demurred to as not fully setting out the nature and character of such improvements and additions. The contract entered into by the association was not a contract to build according to plans and specifications, but a contract to lend money for use in improving and making additions to the property known as the Godwin home place in the City of Albany, and it is nowhere alleged that the loan was conditioned upon any plans and specifications which would require the approval of the lender, although it is alleged that, in obtaining the loan for the express purpose of improving and adding to the property, the purpose was explained to the association and was approved by it, and that it retained the proceeds of the loan, which was to be advanced as demanded. It was not, therefore, essential that the nature and character of the improvements and additions be set out in the petition, and the ground of special demurrer is without merit.
6. Special ground 4 of the motion for new trial complains that the court erred in overruling the motion, at the conclusion of all the evidence, to exclude the testimony of the witness, Albert Henderson, on cross-examination, as to a verbal agreement to lend the sum of $16,000 for improving the Godwin home and constructing a four-unit apartment in the front thereof, contending that such testimony contradicted and varied the terms of the written contract on which it relied. It is contended that the movant had the right to elicit such testimony to establish clearly the contentions made in behalf of the petitioner as pleaded in the petition, and then to show that the oral agreement was prior to or contemporaneous with the written contract, which called for an absolute *Page 142 loan of $8000 and a conditional loan of an additional $8000 for constructing a four-unit apartment on lot 56 and the rear of lot 54, in the rear of the Godwin home, and not a verbal modification of the written contract after its execution. On the other hand, the defendant in error contends that, having elicited such testimony responsive to his questions, the movant is bound by it, and that it made an issue which the jury has resolved in favor of the petitioner.
It is true that, under the general rule, an answer which is responsive to a question on cross-examination will not be ruled out at the instance of the party conducting the examination, although it would have been inadmissible if offered by the opposing party. Anderson v. Brown, 72 Ga. 713; Tift v.Jones, 77 Ga. 181 (3) (3 S.E. 399); Mickle v. Moore,188 Ga. 444, 449 (4 S.E.2d 217). Where public policy does not absolutely bar or disqualify the testimony, its inadmissibility may be waived, under the Code, § 102-106, which provides that "Laws made for the preservation of public order or good morals can not be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest." These principles of law, however, have no application under the facts here presented. The witness testified on direct examination, in support of the allegations of the petition, as to an agreement to lend $16,000 for use in improving the Godwin home and erecting a four-unit apartment in the front thereof. On cross-examination counsel for the defendant association elicited from the witness the fact that the verbal agreement testified to was not a modification of the written contract on which it relied, but was prior to or contemporaneous with such written contract. The written documents introduced in evidence showed conclusively that the contract was for an absolute loan of $8000 for improving the Godwin home place and for a conditional loan of another $8000 for constructing a four-unit apartment on lot 56 and the rear of lot 54, in the rear of the Godwin home, provided plans and specifications therefor be submitted to and approved by the association. Under well-settled law, parol testimony can not add to, take from, or vary the terms of a written contract. Code, §§ 38-501, 20-704 (1). "The rule which denies effect to an oral agreement which contradicts a written contract *Page 143 entered into at the same time or later is not one merely of evidence, but is one of positive or substantive law founded upon the substantive rights of the parties." 20 Am. Jur. 963, § 1100. It is settled by numerous decisions of this court that, where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements can not be allowed to add to, take from, or vary the written instrument. Bullard v. Brewer,118 Ga. 918 (45 S.E. 711); Pryor v. Ludden Bates, 134 Ga. 288 (67 S.E. 654, 28 L.R.A. (N.S.) 267); Case ThreshingMachine Co. v. Broach, 137 Ga. 602 (73 S.E. 1063);Citizens Bank v. Southern Securities Co., 143 Ga. 101 (2 a) (84 S.E. 465); Bond v. Perrin, 145 Ga. 200 (88 S.E. 954). As stated in Anthony Shoals Power Co. v. Fortson, 138 Ga. 460,463 (75 S.E. 606): "Having reduced their contract to writing, all prior oral negotiations and agreements pertaining to the same subject-matter are merged into the writing and superseded by the writing. Weaver v. Stoner, 114 Ga. 167 (39 S.E. 874)." Every sane man is charged with knowledge of the law, and when he enters into a written contract with another he can not thereafter be heard to say that verbal agreements prior to or contemporaneous with the instrument he signs represent the rights and liabilities of the parties and override the more deliberate and formal undertaking. It can not be denied that the defendant association was entitled to a thorough and sifting cross-examination of the witness. Neither can it be denied that it was entitled to show that any verbal agreement relied on by the petitioner was prior to or contemporaneous with the written contract on which it relied. But to render impotent and unavailing any verbal agreement, it was incumbent upon the association to clearly identify such agreement, and then to establish that it was prior to or contemporaneous with the written contract upon which it relied. When, upon the introduction of the written contract in evidence, it appeared that its terms were wholly at variance with the verbal agreement testified to by the witness Henderson, it was entirely within the right of the association, at the conclusion of all the evidence, to have the testimony excluded. Accordingly, the court erred in overruling the motion. *Page 144
7. Special ground 5 of the motion for new trial complains of a portion of the charge of the court as to reconciling any conflict between the documentary evidence and the testimony of a witness or witnesses. Special ground 6 complains of the charge as to special damages sought by the petitioner on the theory that the contract was for a loan of $16,000 for use in improving the Godwin home place. These grounds are controlled by the ruling in division 6 of the opinion, and show reversible error for the reasons stated in the opinion. Special ground 7 of the motion complains of the admission in evidence, of a certain deed, but is not argued or insisted on and will be treated as abandoned. Since the case is being reversed, it is deemed unnecessary to rule on the general grounds of the motion for new trial.
Judgment reversed. All the Justices concur.