Moses vs. Bagley & Sewell. go ties in the way of collecting these claims were in the purview of the contract. Besides, if an attorney go voluntarily forward and do extra labor in litigating for his client; if he beyond the strict letter of the contract without communicating with and having an understanding with his client, and contracting for the additional labor, the word litigation in the contract will bind him, and he can demand no additional compensation. No man has the right, when another employs him to do a particular piece of work at a certain price, to put extra labor upon the job and charge for it, without first consulting his employer and enlarging the contract. 3. The third point is that the court ruled that if a law firm undertake the collection of notes, and pending the litigation it be dissolved, the partner who remains and proceeds with the litigation is bound by the contract, unless he makes a new one. Surely, this is too clear to require argument to fortify or illustrate it. 4. The fourth point is that the court ruled to the effect that if in a conversation, subsequently to the making the contract, the parties get together, and the attorney says that the litigation is heavier than either of them contemplated, and he expects to charge additional fees, or words to that ef fect, and the client makes no response, such failure to respond will not rescind or modify the contract. We suppose that the court meant it took two to make a bargain; and in this case, and under the circumstances of this interview, the silence of the party did not amount to acquiescence. Again we are constrained to rule that the court was right. Mr. Moses was bound under the contract to litigate, and he could not have abandoned it without subjecting himself to suit. Certainly he could not have done so and received any compensation for past services. He lost nothing by the silence of Mr. Bagley. It was no fraud upon him in any legal view of the word. Bagley had the right to stand on his contract, and he did so. It would have been more manly and frank for him to have spoken out, but silence here certainly did not give assent. And Mr. Moses himself could then and there McDonald vs. Beall. have had the matter clearly understood. It would have been easy for him to press for an answer. He was content with silence on the other side, and we think that silence did not annul or modify the contract. Something was said in argument about the contract not having been made with Bagley & Sewell. But it is clear to us that the contract made with White, Sheffield & Company, and its repetition in the letter of Mosses & Garrard, and the draft for the $100 00 and its payment, to be credited upon the fees mentioned in the letter, puts the contract beyond all doubt. Besides, it is not denied in the answer to the rule. 5. Nor is the contract champertous. Moses & Garrard did not stipulate to pay the expenses of the litigation, or to save the plaintiffs harmless from the costs of court; and that element is essential to make the common law offense of champerty: 4 Blackstone, 135; Chitty on Contracts, 584; Bouvier's Law Dictionary, title champerty, and Webster's Unabridged Dictionary, same word. We have no hesitation in saying, at least I do so for myself, and I believe my brethren both agree with me, that the defendant to this rule has been poorly compensated for this onerous and heavy litigation, and a quantum meruit would largely increase his fees; but the law holds him to his contract, and we must administer the law. Judgment affirmed. 55 288! 88 681 55 288 100 228 EDWARD MCDONALD, plaintiff in error, vs. HENRY O. BEALL, defendant in error. I. Where suit is brought to recover the purchase money paid for land on account of a failure of title, or upon the basis of a rescission for fraud, and the defendant pleads the general issue, and also a special plea setting up an indebtedness to the defendant for the balance of the purchase money, it was error in the court to exclude evidence sustaining said second plea. 2. Where the plaintiff seeks to recover the purchase money paid by him for land, treating the contract of sale as rescinded, he must account for the value of the use thereof whilst he was in possession. McDonald vs. Beall. 3. Where the main question in issue turned upon the terms of a verbal sale of land, and one of the parties has given his version, the other may testify as to what was said and done upon the same occasion. 4. Irrelevant and hearsay testimony should be excluded. 5. The fact that a juror was one of the jury which tried the case upon a former trial, is no ground of new trial. The exercise of ordinary diligence would have enabled the defendant, or his counsel, to have discovered the fact before the trial. 6. Where the right of the plaintiff to recover depends upon whether he has been evicted from certain lands purchased from the defendant, under paramount title, such question is one of fact for the determination of the jury. 7. To charge upon an assumed state of facts is error. 8. To charge that one of the parties to a suit, under a certain writing in evi dence, did not have a title, is an invasion of the province of the jury, and error. 9. In this state there is no implied warranty of the title to land in the sale of it. 10. To entitle the plaintiff to treat the contract of sale of the property as rescinded as a foundation for the recovery of the purchase money paid therefor, where there was no covenant of warranty, he must show such fraud on the part of the defendant in respect to the title as would authorize a re-. scission. Vendor and purchaser. Rescission. Evidence. Jury. New trial. Title. Charge of Court. Warranty. Before Judge TOMPKINS. Randolph Superior Court. May Term, 1875. Reported in the decision. H. & I. L. FIELDER, for plaintiff in error. A. HOOD; B. S. WORRILL, for defendant. WARNER, Chief Justice. The plaintiff alleges in his declaration that the defendant is indebted to him in the sum of $1,750 00, which sum he paid defendant under a contract for the purchase of certain described mill property in the county of Randolph, of which he took possession, and was afterwards turned out of the possession thereof by paramount title. On the trial of the case the jury, under the charge of the court, found a verdict for the plaintiff for the sum of $1,728 29. McDonald vs. Beall. The defendant made a motion for a new trial on the several grounds set forth therein, which was overruled by the court, and the defendant excepted. When this case was before this court on a former occasion, (E. McDonald vs. H. O. Beall, 52d Georgia Reports, 576,) the plaintiff based his right to recover on the theory that having purchased the land of the defendant and paid for it, he was bound to make him a good title thereto, and as he had been evicted from the possession of the land by a paramount title to that of the defendant, he had the right to treat the contract of purchase as rescinded, and to recover back the purchase money paid for the land. The defendant in the court below demurred to the plaintiff's declaration on the ground that the plaintiff had not alleged that the defendant had covenanted to warrant the title to the land. The court below overruled the defendant's demurrer, and this court affirmed its judgment, for the reason that the plaintiff might show by evidence at the trial such fraudulent representations by the defendant as to his title, or such fraudulent conduct in relation thereto as would entitle the plaintiff to recover back the purchase money independently of any covenant of warranty of title to the land. On the former hearing of the case it was held and decided that under the evidence contained in the record then before it, the plaintiff had failed to show an eviction by paramount title to that of the defendant, and on that ground, this court reversed the judgment and ordered a new trial. It appears from the evidence in the record of the last trial, that in 1865, O. P. Beall, the father of the plaintiff, purchased the mill property from the executors of James Morris, deceased, the defendant being equally interested in the purchase thereof, took their bond for title, paid $1,000 00 for his half of the mill property, and the defendant paid $1,000 00 for his half of it. On the 15th of November, 1866, the executors of Morris made a deed to the defendant of one undivided half of the mill property, the witness, O. P. Beall, could not state whether defendant ever saw or knew of the deed to him. O. McDonald vs. Beall. P. Beall went into bankruptcy in 1868. O. P. Beall sold his interest in the mill property to his son, the plaintiff, at what time the record does not show. The plaintiff testified in his own behalf, that for a debt due to him by his father, O. P. Beall, he bought a half interest in the mill property from him, and went into the possession thereof, with the understanding that his father held a bond for title from the executors of Morris, and that he would not take a title from his father, O. P. Beall, but that his title was to be made to him from the executors; that after plaintiff had bought his father's half of the mill property, he proposed to defendant to sell, or buy his interest in it; defendant preferred to sell, and offered to take the $1,000 00 he had paid to the executors, and what heh ad expended in repairs, and which was due him by Beall & McDonald; defendant, on looking at his books, thought the amount would be about $1,750 00; that there might be a few small items not entered; plaintiff agreed to pay defendant that amount, he stating that he could not tell the exact sum; the payments to be made in installments of $100 00 per month, until the whole amount was paid, which has been done. There was nothing said about a title to the property between plaintiff and defendant; took no deed, or other obligation in writing of any kind; never called on defendant for a deed, or title at any time. This is the version given of the trade by the plaintiff himself. The plaintiff, or his father, has been in possession of the property all the time, the latter claiming now to be in possession under a contract made with Smith, the purchaser at the marshal's sale under an execution against the executors of Morris. The plaintiff read in evidence an execution from the district court of the United States, in favor of Davenport, against the executors of James Morris, issued on a judgment obtained on the 1st of May 1868, against them, which had been levied on the mill property, as the property of James Morris, deceased, which property, with other property levied on at the same time, was all sold for the sum of $700 00 and purchased by Smith, on the 6th of December, 1870. The judgment against the ex |