The court did not err in denying a new trial.
DECIDED JUNE 14, 1945. This is the third appearance here of this case. On the first trial, a verdict was directed for Byars, and that judgment was reversed by this court. Cantrell v. Byars,66 Ga. App. 672 (19 S.E.2d 44). On the second trial, the jury returned a verdict in favor of Byars, and this court reversed the judgment denying a new trial, because of the admission of certain illegal evidence. Cantrell v. Byars, 71 Ga. App. 287 (30 S.E.2d 643). *Page 550
On the trial now under review, the illegal evidence introduced on the second trial was not admitted, and the jury again returned a verdict for Byars.
The main contention of Cantrell seems to be that this court on the first appeal ruled that under the facts of the case he was not estopped from denying that Byars had been released on the notes sued on; and that (as contended by Cantrell) this court on the second appeal made certain rulings which were in conflict with that ruling on the first appeal, which had become the law of the case. We can not concur in that contention. On the first appeal, this court held that the evidence in the case on the question, whether Cantrell agreed to release Byars on all notes if he paid certain notes at the First National Bank and did not file a petition in bankruptcy, was in direct conflict, and the case should have been submitted to the jury, and that the court erred in directing a verdict for Byars. On that appeal, this court further said: "Byar's contention is that he acted on Cantrell's conduct to his own injury, and that Cantrell is now estopped to deny the release. The trouble with this contention is that Byars testified that Cantrell expressly agreed to release him from liability on the notes sued on if he kept his part of the alleged agreement. He not one time expressly or impliedstated that he was induced to act by the conduct of Cantrell asshown by Cantrell's quoted testimony. In the absence of evidenceshowing that Byars acted on the conduct of Cantrell, such conducton Cantrell's part does not estop him to contend that there wasno release of Byars on the notes sued on." (Italics ours.)
On the second trial, Byars amended his answer by specially pleading that Cantrell, by his conduct, was estopped from denying that Byars had not been released on the notes sued upon. The answer as so amended was demurred to; the demurrer was overruled, and that judgment was assigned as error; and this court affirmed the judgment. Cantrell v. Byars, 71 Ga. App. supra. And on that second trial, Byars testified that he had a conversation with Cantrell, "and I told him that I had about got that note paid off at the First National Bank, and that, when I had finished it, I wanted him to send those other notes back to me, and he said, `all right.' That was the latter part of 1939, and the note was paid off sometime in 1940. I acted and relied onthe statement that he made to me at that time. I would have been *Page 551 forced to go into bankruptcy if the agreement made by us at that time had not been acted on by me. I could not pay the interest on the notes, much less the principal. The statement that was madeto me by Mr. Cantrell at that time was acted on and relied on byme, I could not act on anything else." (Italics ours.) We hold, therefore, that the rulings by this court on the second appeal, on the question of estoppel, are not in conflict with the ruling made on the first appeal. On the trial now under review, the evidence on the question of an estoppel was substantially the same as that on the second trial; and the ruling on that question made on the second appeal, not having been reversed, has become the law of the case.
On the second appeal of the case (71 Ga. App., supra), this court carefully considered, all of the special grounds of the motion for new trial, complaining of errors of commission and omission in the charge of the court, and in the refusal of the court to give certain requested charges, and held that none of those grounds disclosed error. Those rulings, being pertinent to the case and not having been reversed, whether right or wrong, have become the law of the case. On the trial now under review, special grounds 1, 2, 3, 6, 7, 8, 10, 11, 12, 14, 15, and 16 of the motion for new trial are substantially identical with certain grounds of the motion for new trial which this court held in 71Ga. App., supra, disclosed no error. The remaining special grounds 4, 5, 9, and 13 of the motion now being considered, under the facts of the case and the law pertinent thereto, show no cause for a reversal of the judgment.
As before stated, this case has been twice submitted to a jury, and on each occasion a verdict for Byars was returned. On the trial now under review, the errors committed on the former trials were eliminated, and we hold that the verdict was authorized by the evidence.
Pursuant to the act of the General Assembly, approved March 8, 1945, requiring that the full court consider any case in which one of the judges of a division may dissent, this case was considered and decided by the court as a whole.
Judgment affirmed. All the Judges concur, except Felton, J.,who dissents. *Page 552