1. The ruling sustaining the demurrer to count one of the petition, which was not excepted to, eliminated the contention of the plaintiff that his failure to prevail in the suit for the recovery of the lands in question was due to the fact that the defendants did not co-operate with him. *Page 860
2. The trial court erred in the construction of the contract, and in directing a verdict for the plaintiff; and consequently erred in overruling the defendants' motion for a new trial.
3. The non-joinder of parties defendant can not be raised for the first time by a motion for new trial.
DECIDED MARCH 16, 1944. ADHERED TO ON REHEARING, MARCH 30, 1944. O. J. Franklin, an attorney at law, sued Daisy McCloud and Rosa E. Brown on a written contract providing for the payment of attorney's fees in the sum of $1000. The contract was made with the plaintiff by an attorney in fact under a written power of attorney for and in behalf of the two resident defendants, who were sued with seven others, the children and representatives of the heirs at law of Sherman Price and Rosa A. Price, both deceased. The seven other parties referred to were alleged to be non-residents of the State of Georgia. The contract sued on provided in part as follows: "Said party of the second part [O. J. Franklin], is hereby employed as an attorney at law to look after all the legal interests of said tenants in common, such as getting in possession of all realty, and other property now held adversely and to the exclusion of said tenants in common to which they claim title, and when possession thereof is gained, then to have same partitioned among the tenants in common, as provided by law, and to do all things required and necessary in and about said property which was once the Sherman Price estate so as to make same available to be used and enjoyed by said tenants in common as owner of same, for which legal services the said party of the first part hereby agrees, and does by these presents agree, to pay the said party of the second part the sum of $1000 for his said services as aforesaid, said sum to be paid as same is available from the sale of some, or all, of the property now claimed by said tenants in common, which was once the estate of their father, Sherman Price, deceased." The power of attorney, under which the contract, executed in behalf of the heirs of Price by their attorney in fact, was made, gave to the attorney in fact the authority of "employing counsel to assist him, the said W. R. Hall, with such matters as he may deem necessary, such as recovering for us properties to which we may be lawfully entitled, but the possession of which is in some other person or persons . . making with such counsel *Page 861 as he may employ such contract as he may deem wise and proper." The petition as amended contained two counts. Count one alleged that Franklin under and by virtue of said contract filed an action in Dodge superior court to recover for the heirs of Sherman Price certain lands of which he died possessed and to which the heirs claimed title; that the judge presiding in the case sustained the defendants' demurrers to the action and dismissed it, which judgment the plaintiff alleged was error; that by reason of specific alleged facts, the heirs had wholly failed to assist the plaintiff and co-operate with him in prosecuting the action; and that he fulfilled his contract as far as he was able, and still was willing to perform with the proper assistance and co-operation. The allegations as to a lack of co-operation consisted of a copy of two letters written to one of the heirs, asking that $50 court costs be sent to the plaintiff at once, or the enclosed pauper's affidavit be signed by all and returned. Count two alleged substantially that the contract above referred to was made between the parties, and that the plaintiff had performed as an attorney the services required under the provisions of the contract, to wit, that "he consulted and advised with the defendants' agent relative to legal matters concerning the defendants' property, he instituted and tried suits for the recovery of the realty claimed by the defendants, and he did all things required and necessary in and about the property of the defendants so that they could use and enjoy the same as tenants in common," and the defendants "fail and refuse to pay petitioner the sums of money promised to be paid to him. to wit, $1000, and they fail and refuse to sell any part or all of the property claimed by them in order to pay petitioner from the proceeds of the sale thereof." Count one was stricken on demurrer, and the demurrers to count two were overruled, neither of which judgments is excepted to. The court directed a verdict for the plaintiff, and the defendants except to the overruling of their motion for a new trial. 1. The judgment on the demurrer to count one, unexpected to, eliminates from the case the question whether the plaintiff is entitled to recover by reason of the fact that his failure to recover and partition certain *Page 862 lands claimed by the defendants and other heirs of Sherman Price was due to the fact that the heirs did not co-operate with him.
2. Under the record here presented, the construction of the contract was a matter for the court; but we think that the interpretation placed on the contract by the trial judge was incorrect, and that he erred in directing a verdict for the plaintiff. Our view is, that construing the contract as a whole, with the sole view of ascertaining the intention of the parties, it means that the attorney was employed to recover for the heirs certain lands held adversely to them, to which they claimed title, and to have them partitioned, upon which contingency he would receive the agreed fee. We do not think that the use of the words, "is hereby employed as an attorney at law to look after all the legal interests of said tenants in common" means that the employment was to represent all legal interests generally. The provision following the one just quoted limits and defines "all the legal interests." The provision following states, "such as getting in possession of all realty," etc. The meaning is the same as if the contract had stated, "to look after all the legal interests involving the recovery of property held adversely to the heirs." This construction is supported by the subsequent provisions, "and to do all things required and necessary in and about said property which was once the Sherman Price estate so as to make same available to be used and enjoyed by said tenants in common as owners of same, for which legal services the said party of the first part hereby agrees . . to pay . . $1000, . . said sum to be paid as same is available from the sale of some, or all, of the property now claimed by said tenants in common, which was once the estate of their father. . . It is agreed that said tenants in common shall and will give said party of the second part their full co-operation, assistance and support to gain possession of any and all realty now held adversely to them, or anyone of them." The statements in the contract with reference to obtaining possession of lands claimed by the heirs can refer to no lands other than those held adversely to the heirs, because there would be no necessity to recover lands owned and held by them. Likewise, the statement as to the source from which the fee was to be paid, means the proceeds from the sale of lands recovered from those holding adversely to the heirs. The word "claimed" means claimed as against those holding adversely, *Page 863 and does not refer to lands owned by the heirs and not claimed by others. We can not agree with the plaintiff in the court below that the contract is one for general legal services to be paid for out of lands recovered, or other lands now owned by the heirs which are in their possession and about the ownership of which there is no dispute. The evidence shows without dispute that the contingency provided for in the contract was not brought about, and that the attorney's fee never did accrue. The fee was "to be paid as the same is available from the sale of some or all of the property now claimed by said tenants in common which was once the estate of their father, Sherman Price, deceased." The court erred in directing a verdict for the plaintiff, and in overruling the defendants' motion for a new trial.
3. Special ground 1 is without merit, as a non-joinder of parties must be objected to at the first term by special plea, or by special demurrer, and can not be raised for the first time by motion for new trial or bill of exceptions. Code, § 81-304;Merritt v. Bagwell, 70 Ga. 578 (3); Hogan v. Morris,7 Ga. App. 232 (4) (66 S.E. 550); Greenwood v. Starr,174 Ga. 503 (2) (163 S.E. 500).
It is not necessary to pass on the other questions raised.
Judgment reversed. Sutton, P. J., concurs.