Opinion
41242.
ARGUED APRIL 6, 1965.
DECIDED APRIL 28, 1965. REHEARING DENIED MAY 17, 1965.
Action to recover earnest money. Fulton Civil Court. Before Judge Williams.
Levy Stonecypher, Jean Wm. Levy, for plaintiff in error.
Greene, Neely, Buckley DeRieux, James H. Moore, contra.
1. The plaintiff's petition contained enough to amend by and as amended set forth a cause of action.
2. The trial court did not err in admitting or excluding evidence and the evidence adduced authorized the judgment of the trial court hearing the case without the intervention of a jury.
ARGUED APRIL 6, 1965 — DECIDED APRIL 28, 1965 — REHEARING DENIED MAY 17, 1965.
A. J. (Lee) Gonzalez sued C. W. Carmichael, Jr., and Adair Realty Loan Company to recover $500 earnest money paid under a contract for the purchase of realty. The defendant Carmichael filed a cross action seeking to recover from Gonzalez for the alleged breach of the contract. On the first appearance of the case before this court, Carmichael v. Gonzalez, 107 Ga. App. 746 ( 131 S.E.2d 149), it was held that "the allegations of count 1 of the petition and the defendant's cross action present genuine issues as to material facts which must be resolved by a trial." After the judgment of this court was made the judgment of the trial court the plaintiff amended his petition so as to add dates and persons contacted with reference to the loan needed to complete the real estate transaction which was made "contingent upon purchaser being able to secure first mortgage" upon certain terms as shown in the opinion on the first appearance of the case in this court. After such amendment, which showed dates when the plaintiff sought the loan after the time specified in the contract, the trial court sustained an oral motion to dismiss counts 1 and 2 of the plaintiff's petition allowing 20 days to amend count 1. During the 20 day period allowed for amendment the plaintiff struck the allegations referred to above and alleged dates and places where the loan was sought during the time set forth in the contract and that even after the time had expired he sought the loan. The defendant then moved for the dismissal of the petition as amended because it failed, as amended, to set forth a cause of action. The trial court overruled such contention and on the trial of the case before the judge, without the intervention of a jury, a judgment was rendered for the plaintiff. Thereafter, the defendant's amended motion for new trial was overruled and error is now assigned upon the judgments adverse to the defendant on the pleadings as well as upon the judgment overruling his motion for new trial.
1. The defendant contends that the trial court erred in allowing time to amend when it sustained the motion to dismiss count 1 of the petition upon the ground that the petition failed to contain enough to amend by. Code § 81-1302 provides: "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by. The jurisdiction of the court may be shown and the details and circumstances of the particular transaction may be amplified and varied by amendment. If the declaration shall omit to allege facts essential to raise the duty or obligation involved in the cause of action which was evidently originally intended to be declared upon, the omitted fact may be supplied by amendment."
The petition contained enough to amend by, and the trial court did not err in permitting such amendment.
(a) The petition as finally amended alleged that the plaintiff sought the loan, during the period of time provided in the contract for him to obtain such loan, from 2 named savings and loan associations as well as from an insurance company and a bank; that he could not obtain the loan from either of the savings and loan associations or the bank under the terms provided in the contract or from the insurance company. Under such allegations the petition as amended set forth a cause of action and a question of fact was presented as to whether the plaintiff had sought unsuccessfully in good faith to obtain the loan under the terms set forth in the contract. See Murphy v. Morse, 96 Ga. App. 513 ( 100 S.E.2d 623).
2. During the trial of the case the plaintiff testified that he contacted the institutions named in the petition to apply for the loan but was unable to obtain it. His attorney then asked if there was any reason why he was unable to obtain the loan. His reply, "at the time, the lending officers of these various banks I had attended advised me no such loan was available," was objected to on the ground that the answer was hearsay. Such evidence was admissible to explain the plaintiff's conduct in not filing a formal written application for the loan with such lending institutions at that time. "When in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Code § 38-302. However, even if such testimony could be considered "hearsay" it was not harmful error to admit such testimony where witnesses for the defendant, an officer of the bank and an officer of one of the savings and loan associations, testified on cross examination that their lending institutions could not make a loan under the terms required by the contract.
(a) The sole remaining special ground of the defendant's amended motion for new trial complains of the exclusion of evidence sought to be elicited from the plaintiff while on cross examination. The ground of the motion for new trial complains of the judgment excluding a particular question while the gist of the argument in support of such ground is that the question asked was the first in a series to be asked and that the defendant's right to a thorough and sifting cross examination was abridged.
"Every party litigant is entitled to a thorough and sifting cross examination yet the discretion of the trial court to control such examination so as to limit the inquiry to relevant matter will not be interfered with unless such discretion is manifestly abused. See Clifton v. State, 187 Ga. 502, 508 ( 2 S.E.2d 102), and citations. It cannot be said that by sustaining the objections to specific questions asked the trial court abused its discretion to control the cross examination of the witnesses within reasonable bounds." Kaminsky v. Blackshear, 108 Ga. App. 492, 495 ( 133 S.E.2d 441). Nor was the exclusion of the evidence reversible error since an answer to the question asked would not aid in determining whether the defendant had in good faith endeavored to obtain the loan and carry out the other undertakings required of him under the contract. Carmichael v. Gonzalez, 107 Ga. App. 746, supra.
(b) The evidence adduced on the trial of the case, while not without conflict, was sufficient to authorize the trial court to find that the plaintiff had sought in good faith to obtain the loan as well as the other undertakings required of him under the contract. Accordingly, the trial court did not err in overruling the defendant's motion for new trial for any reason assigned.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.