10064.

#### Guarantee Trust and Banking Company *v.*Dickson.

Jenkins, J.

1. The Supreme Court having held that this case was an action at law (148 *Ga.*311, 96 S. E. 561), the court below erred in not submitting to a jury the exceptions of fact taken to' the auditor’s report. *Weed*v. *Gainesville Railroad Co.,*119 *Ga.*576 (6, 7), 577 (46 8. E..885); *Anderson*v. *Blair,*121 *Ga.*120 (48 8. E. 951, 2 Ann. Cas. 165) ; *Griffin v. Collins,*122 *Ga.*102, 110 (49 S. E. 827).

(a) It is insisted, however, by the defendant in error, that notwithstanding the adjudication by the Supreme Court that the ease is one of law and not one in equity, the exception to the refusal to submit the questions of fact to the jury is not good and can not be considered by this court, for the reason that no brief of the evidence has been brought up in the record, and that it does not. therein affirmatively appear that there were any disputed issues of fact in the case, although the exceptions of fact filed by the plaintiff in error do specify certain portions of the evidence, and might so indicate; the contention .being that the judgment is presumed to be correct, and that the burden is on the plaintiff in error to show the contrary, and that, since no brief of the evidence is embodied in the record, it must be presumed that the evidence of the defendant in error was uncontradicted in the court below, and there-*721lore that the judgment as rendered was demanded. It is the opinion of this court, however, that when exceptions of fact to an auditor’s report in an action at law are filed, the court has no power to disallow them and dispose of the case without the intervention of a jury, unless the parties expressly waive their right to trial by jury. Civil Code (1910), § 5141. Thus, assuming or conceding that there is no material conflict in the evidence, and that all of it demands the auditor’s finding as made, even then, while the court might, as in other cases, properly direct a verdict, still it has no right in such a ease to strike the exceptions of fact and enter up a judgment without the verdict of a jury. *Weaver*v. *Cosby,*109 *Ga.*310, 312 (34 S. E. 680).

Decided May 13, 1919.

Exceptions to auditor’s report; Fulton superior court—Judge Bell. July 12, 1917.

*Tye, Peeples & Tye, Rosser, Slaton, Phillips & Hopkins, Napier, Wright & Wood,*for plaintiff in error.

*Westmorland, Anderson & Smith, Marie Bolding,*contra.

2. Whether the original contract in writing set out in exhibit “B” to the plaintiff’s petition, which, according to its terms, was terminable upon thirty days’ notice, could have been modified by parol agreement, as set out in the amendment to plaintiff’s petition, so as to render it a contract for a stated term of five years, does not seem to be a material question in this case, so as to render the petition as amended subject to demurrer, since the petition shows that the contract at the time of its alleged surrender to and purchase by the defendant was still of force, and, in the language of the auditor, such alleged alteration “is not a point upon which the decision could turn; it affects but the consideration for the surrender; the thing given up by the plaintiff and acquired by the defendant, and not the contract [of sale or surrender] acquired by the plaintiff. Whether the contract given was for five years, or one terminable at thirty days’ notice, as a consideration, it was sufficient.”

*Judgment reversed.*

*Wade, C. J., and Luke, J., concur.*