Mrs. Minnie Belle Brown filed a petition against her husband, Joseph W. Brown, praying for divorce, alimony, specific performance of a contemporaneous written contract to deliver a deed executed to her by the husband to sixty-two acres of land and improvements, recovery of the land, injunction, receiver, and general *Page 854 relief. The contract recited that the deed was executed "with the distinct and irrevocable understanding that [the husband] is not to drink any intoxicating beverages or liquors at any time in the future, and in the event he does, upon satisfactory proof of the same by any reputable person or persons, that the deed . . is to be placed upon the DeKalb County records, and the property is to become in fee-simple the property of the said Minnie Belle Brown." It also provided certain undertakings by the wife as to the dairy business conducted on the property. The petition does not set forth the requisites of a delivery in escrow. It merely recites that the deed was prepared at the instance of the husband, and "is in the possession of the defendant or his attorneys." It does not show that the deed was ever delivered to the wife or to any person in escrow to be delivered to her upon the happening of the contingency set forth in the contract. While the suit originally prayed that "said contract be specifically performed," this prayer was stricken, and a prayer substituted that the land be found and decreed to be her property under the deed and contract. The only question relative to the land which was submitted to the jury was, "Did the property described in the contract and deed . . become the property of [the wife] under the contract and performance thereof?" to which they answered, "No," while finding in her favor as to divorce and alimony. There was no exception to the failure of the court to submit to the jury the question of specific performance under the general prayer of the petition. The wife excepted to the finding as to the land only on the general grounds, and a special ground on the admission of testimony by an attorney that he was the custodian of the deed and contract under an agreement made by the husband and wife that he was not to deliver the papers unless the husband should tell him in the presence of the wife to deliver them to her; and that while he had represented the husband in previous matters and had drawn the papers at the instance of the husband, he did not consider himself as an attorney in holding the papers, but merely as a friend of both parties. The exception to this testimony is that it was incompetent because of the relation of attorney and client; and that it sought to vary the written provision of the contract, that the deed was to be delivered and recorded upon the happening of the stated event as to the future conduct of the husband. *Page 855
There was written and oral evidence that, after the execution of the contract and deed, the husband had drunk intoxicating liquor. The wife testified, that after the attorney had drawn the papers they had been left with him; that she had not asked for them for about four years afterwards; and that she had never employed or consulted him as an attorney. In the testimony of the attorney, to which no exception was taken, he said that he had retained the papers in his custody without any delivery to anybody until he produced them in court. ON MOTION FOR REHEARING. The plaintiff wife moves for a rehearing, first, on the ground that the court based its decision on the erroneous assumption that plaintiff struck from her petition a prayer for specific performance of the pleaded written contract between her and her husband, and asked only to have title decreed as in her by virtue of a deed from her husband made contemporaneously with the contract; and that by this erroneous assumption the court erred in holding the verdict against the plaintiff to have been demanded for the reason that there was no delivery of the deed either to the plaintiff in person or to an attorney for her under any effective escrow. She contends that her prayer for specific performance, never having been stricken, remained an issue in the case; and that she was entitled to that relief on the contract. The other ground of the motion is that the court failed to pass on her exception to the admission of testimony by the attorney as to conversations of the parties when they left the deed and a duplicate original of the contract with him, over objection that such conversations were between attorney and client, and sought to vary the terms of the written contract.
The conclusion that the prayer for specific performance had been stricken was based on the record as it was brought to this court. The original petition, in a paragraph numbered "19," described a deed dated June 10, 1935, from the husband to the plaintiff, and a deed dated September 29, 1936, from her back to the husband, which she alleged to be void for reasons stated; and prayed that the latter deed be so declared, and that "title be decreed to be in petitioner," subject to described incumbrances. By an amendment of March 5, 1940, the plaintiff added a count 2, with paragraphs numbered *Page 856 "1" to "12," containing new averments as to the two deeds, and with prayers lettered "a" to "d," which were followed by a prayer numbered "3," that "title be found and decreed to be in petitioner" by reason of the deed of June 10, 1935, from the husband, and that her deed back to him of September 29, 1936, "be decreed to be void and of no effect." There were prayers lettered "f" to "i," but no prayer lettered "E." It is apparently the prayer numbered "3" which movant contends was intended to be stricken by her amendment, made September 4, 1940, hereafter described. By amendment of May 23, 1940, she added new paragraphs numbered "19 A" to "19 E," in which she set forth a copy of the contract of December 14, 1936, between the parties, and another deed of the same date from the husband to the wife; the contract providing that if he drank any intoxicating liquor in the future, "upon satisfactory proof . . the deed is to be placed upon the DeKalb County records, and the property is to become in fee-simple the property of the wife." Immediately following the paragraph numbered and lettered "19 E" was a prayer that "said contract be specifically performed, and that the property be adjudged and decreed to be the property of petitioner." On September 4, 1940, she filed amendments, "striking out the prayer for cancellation of the deed from petitioner to defendant, referred to in the 19th paragraph of the original petition;" changing averments in that paragraph; and adding a prayer, that, "in the event said realty is not found and decreed to be the individual property of petitioner, nevertheless that it be awarded to [her] as alimony." On the same date, September 4, 1940, she filed another amendment to count 2, as follows: that she "strikes the prayer designated as `E' of said count, and substitutes in lieu thereof a prayer that said land be found and decreed to be the property of petitioner under contract and deed referred to in the later amendment made to said count."
When this court examined the pleadings as they appeared in the record, and found no paragraph lettered "E" in any earlier pleading to correspond with the "E" which the pleader struck, the court referred to the later amendment of May 23, 1940, in which, immediately following the paragraph numbered and lettered "19 E," there was the prayer for specific performance and other relief. Since there was no other paragraph in the prayers which was lettered *Page 857 "E" or connected with any paragraph lettered "E," it was assumed in the original decision that the prayer in immediate connection with paragraph "19 E" was the prayer which plaintiff had stricken. But she now apparently contends that it was the prayer numbered "3" in the earlier pleading which she struck or intended to strike. Whether this erroneous lettering and numbering, which led the court into the conclusion stated, was a typographical error that occurred before the pleading was filed, or occurred when it was copied in the record, does not appear; but this would seem to be a matter of no practical import, since, even if it be assumed that the prayer for specific performance was not stricken, the result of the case under that additional aspect would not be different.
The judge instructed the jury not to return a general verdict, but to answer six submitted questions. The only one relating to the described deeds or the contract was: "Did the property described in the contract and deed made by the parties under date of December 14, 1936, become the property of the plaintiff . . under the contract and her performance thereof?" To this the jury answered "No." But they allowed the plaintiff alimony in stated monthly sums, and other lump sums amounting to $3500, to be paid on two specified days; the lump sums to be paid irrespectively of any remarriage of the plaintiff. The decree made the findings of the jury as to property rights the judgment of the court; and it further provided that the lump amounts be "special liens against the property of the defendant," and that "executions for said . . recoveries issue now and be recorded, but enforcement by levy and sale thereof stayed until due according to the finding of the jury."
The plaintiff's motion for new trial contains only the general grounds, and the exception to the admission of testimony by the attorney relating to the contract, accompanying deed, and conversations of the parties. There is no exception to any question submitted to the jury, or to the failure to submit any other requested question, or to the decree as entered. Counsel for movant suggested in his original brief that "in case of a retrial . . the scope of the trial should be limited, either to the question of title under the contract, or title and amount of alimony," though "she would be content with a trial limited totitle ."
The judge, under the Code, § 37-1104, having submitted to the jury special issues, which did not include any question as to requiring *Page 858 specific performance of the contract, and having submitted only the question, "Did the property . . become the property of the plaintiff under the contract and her performance thereof?" thus confining the jury to the one issue whether title had actually passed to the plaintiff, their verdict necessarily was limited to that issue, and did not embrace the question as to whether title should be ordered to pass on account of the husband having subsequently violated the contract by indulging in intoxicating liquor. Accordingly, even if it be assumed that the prayer for specific performance was not stricken, or even if the plaintiff might have had that relief under her general prayer, still, in the absence of any objection and exception to the questions as submitted, covering only the question of actual title without a specific performance of the contract, neither the failure to submit the latter issue nor any right to recover thereunder would afford ground for setting aside the verdict. See, in this connection, Jefferson v. Hamilton, 69 Ga. 401 (2, a), 402, and cit.; McWhorter v. Ford, 142 Ga. 554 (5, a) (83 S.E. 134); Lake v. Hardee, 55 Ga. 667 (2, 3); Walker v.Horton, 184 Ga. 429 (8) (191 S.E. 462), and cit.
Under the preceding rulings and the rulings in the original decision, it remains unnecessary to consider the exception to the admission of testimony by the attorney, relating to the contract, contemporaneous deed, and ineffective escrow.
Rehearing denied. All the Justices concur.