In an action to recover damages for the breach of a contract to allow the plaintiff to sell the defendant's soil and divide the proceeds equally between the parties, where the parties stipulated that a sale was made to one party, it was error to permit the defendant to testify that he sold the soil to one other than the party whom the stipulation named as the purchaser.
DECIDED APRIL 22, 1949.
Arnold Williams sued Joel Whitt to recover damages for the breach of a contract whereby the defendant authorized the plaintiff to sell any part of the soil from designated lands of the defendant for such price as he saw fit, of which each party was to receive 50% of the sale price. The defendant denied the allegations of the petition. Both parties introduced evidence, and the jury found for the defendant. The plaintiff's motion for a new trial was overruled and he excepted.
It was stipulated between the parties on the trial of the case that the contract sued on was executed as alleged in the petition, that the State Highway Department of Georgia was the purchaser of the soil from the defendant's lands, and that the amounts alleged in the petition are true and correct. The evidence for the plaintiff tended to show that the sale of the soil was due to the efforts of the plaintiff. The defendant denied that the plaintiff procured the sale. The court, over timely and
proper objection, permitted the defendant to testify that he made a contract for the sale of the soil with a Mr. Goldstein in March, 1947. The objection was that the stipulation showed that the Highway Department purchased the soil, and the defendant should not be permitted to show another contract of sale. We think that this ground of the amended motion is meritorious. It was not shown that Goldstein was an agent of the Highway Department, and authorized to buy the soil for it. After stipulating in judicio that the sale was made to the Highway Department, the testimony of the defendant as to a sale to another was contradictory to his solemn admission, was confusing to the jury, and presumably prejudicial to the plaintiff. The court erred in overruling the motion for a new trial on this ground. The general grounds are not passed on.
Judgment reversed. Sutton, C. J., and Parker, J., concur.