171 Ga. 240 | Ga. | 1930
Lead Opinion
This is a consolidated cause. A demurrer to each 'of the cases was overruled and these judgments were affirmed by this court. Turner v. Security Plumbing Co., 165 Ga. 479 (141 S. E. 291); Turner v. Deckner-Willingham Lumber Co., 165 Ga. 652 (141 S. E. 651). Upon the issue in the case, whether the con
In October or November, 1925, Jenkins was in the office of Turner on some other business. Turner asked him if he was very busy at that time, and he told Turner that he was not. Turner asked him why it was that he didn’t buy an expensive lot and build a big building on it, and make some easy money. He told Turner he did not know how to do it. Turner said he would show him how he could do it without any obligation on his part, if he would turn the matter over to Turner to handle. Turner said he had handled propositions of this kind before, but he had them to pay him a fee of $5,000 in each case. Turner stated that he had handled the Granada apartments for one Langston, and said that Langston had gotten away with $17,500, over and above the $5,000 Langston paid him for his fee. Turner said all the materialmen in Atlanta think they are smart, but they are the softest things he ever saw. Turner said that witness would not have to pay for any of the material unless he just wanted to, and that they would not touch a hair on his head if witness would let him handle the proposition. Witness asked him how it was to be done. Turner said, if witness was worth anything, the day before he signed any contract for lots, he must sign everything he had over to his wife; that after this was done, witness was then to buy the property, and when he did, every materialman would be running after him to sell him material; and that the loan people would be hounding witness to make a loan. Turner said a man with credit can make large deals, but a man with nothing could not pull this off without the aid of some one. Witness told Turner that he could not understand how it was that these things were done. Turner said, “After you buy the lot and make a small cash payment, then arrange a
The foregoing testimony was at first admitted by the auditor, over the objection-of the defendant that it was irrelevant and immaterial; but the auditor afterwards sustained the objection and ruled out this testimony. This ruling was not classified either as one of law or one of fact. The plaintiffs moved to recommit the report of the auditor, upon the ground, among others, that this finding was too indefinite, that it failed to set forth the testimony which was offered, and the objections made thereto, and that the ruling of the auditor was not classified either as one of law or one of fact. The court refused to recommit the case. In their exceptions to the auditor’s report the plaintiffs except' to the above ruling of the auditor in ruling out the above testimony.
The dealings between Turner and Jones on the one part and Gallimore on the other part, began in March, 1926. ' The vital and controlling point in the case is whether the transactions between Turner and Jones and Gallimore were bona fide purchases of the lots in question, by the latter from the former, or whether it was a scheme by which the lots would be improved by material purchased by Gallimore from various materialmen, for which Gallimore had no intention of paying, and which improvements were to enure to the benefit of Turner and Jones as the owners of the lots involved.
1. Upon the issue whether the contracts between Jones and Turner of the one part, and Gallimore of the other part, were contracts of sale bona fide, with agreements on the part of the owners to advance to Gallimore money or to extend to him credits for the purpose of improving the lots which Jones and Turner ostensibly agreed to sell to Gallimore, or whether these contracts were parts of a scheme by which Gallimore was to employ labor on credit and likewise procure material for the improvement of these lots and not pay for the same, and thus enable Jones and Turner, who retained title to the lots, to reap the benefit of improvements erected thereon by such labor and with such materials, the above testimony of Jenkins was admissible. Evidence that parties charged with having been engaged in a fraudulent scheme to defraud laborers
(а) Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to the matters charged against him in the petition. 10 R. C. L. 938, § 105; Jordan v. Osgood, 109 Mass. 457 (12 Am. R. 731); Eastman v. Premo, 49 Vt. 355 (24 Am. R. 142). This is so in transactions of similar nature or like character in which the defendant had engaged previously to the one in question. Hobbs v. Boatright, 195 Mo. 693 (93 S. W. 934, 113 Am. St. R. 709, 5 L. R. A. (N. S.) 906).
(б) Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. Lee v. State, 8 Ga. App. 413, 417 (69 S. E. 310); McDuffie v. State, 17 Ga. App. 342 (86 S. E. 821). Other transactions showing fraud are admissible to show intent. Farmer v. State, 100 Ga. 41, 43 (28 S. E. 26); Wyatt v. State, 16 Ga. App. 817 (81 S. E. 802).
2. As the above ruling requires the grant of a new trial, and makes necessary the recommittal of the case to the auditor for the purpose of including such evidence in his report, and making his
Judgment reversed.
Dissenting Opinion
dissenting. I am of the opinion that the auditor did not err in excluding the testimony of the witness Jenkins. The conversations and proposals made by Turner, as testified to by the witness, related entirely to a transaction not connected with those under investigation. If admitted and believed, it would tend to prove that H. H. Turner had concocted a plan whereby Jenkins might perpetrate a fraud upon other parties. But this was in relation to an entirely different matter from that under investigation, and quite a while before it. It was irrelevant and immaterial so far as the instant case is concerned, and the auditor properly excluded it.
