174 Ga. 544 | Ga. | 1932
On January 11, 1929, J. E. Boss sold and conveyed an improved lot in Loganville, Georgia, to C. S. Floyd. The purchase-price was $750 cash and ten shares of the capital stock of the Farmers & Merchants Bank. On January 17, 1929, the bank was taken over by the State superintendent of banks, as an insolvent institution, immediately Boss endeavored to rescind, and tendered to Floyd the $750 and the shares of stock and demanded a deed of reconveyance. Floyd refused to rescind; whereupon Boss instituted suit, on January 23, 1929, for rescission on the ground of fraud, charging that the shares of stock were worthless, and that Floyd, who was a director and vice-president of the bank, knowing that the shares of stock were worthless, induced the trade by stating to Boss that the stock had a book value of $125 per share, a cash value of $100 per share, and was well worth on the market $80 per share, which statements Boss, being ignorant of the value of the stock, accepted as true. The answer of the defendant denied having made any statements as to value of the stock, or that he had induced the trade, but alleged that he had been persuaded by Boss to make the trade, who had ample opportunity to inform himself as to the value of the stock; that it was generally known that the stock was of very little value, and peti
A material representation falsely made by a vendor to a vendee to induce a sale, and made with knowledge of its falsity and acted upon to the vendee’s injury, amounts to actual fraud. (Emlen v. Roper, 133 Ga. 726(2), 66 S. E. 934; Brannen v. Brannen, 135 Ga. 590, 69 S. E. 1079; Mangham v. Cobb, 160 Ga. 182, 185, 127 S. E. 408), and will void a contract . (Civil Code, § 4254), and authorize rescission by the vendee if he acts promptly after discovery of the fraud and restores or offers to restore whatever of value he has received by virtue of the contract. Civil Code, § 4305.
(a) Under conflicting evidence in the instant case, whether the contract was induced by actual fraud of the defendant and whether the plaintiff had sufficient opportunity to ascertain the condition of the bank were questions for the jury; and a request for the court to charge them as follows was not properly adjusted to the pleadings and the evidence: “A contract will not be rescinded or set aside because of the falsity of statements made by a party to a contract, unless some fraud or artifice was practiced by the
(5) On the question of knowledge of an officer of a bank of its insolvency, see Lowry Banking Co. v. Empire Lumber Co., 91 Ca. 624 (17 S. E. 968).
(c) The case upon its facts does not come within the ruling in Brannen v. Brannen, 135 Ga. 590, supra, where it was stated: “The court committed no error in striking a plea of the defendant, to the effect that the vendor misrepresented to him the character and value of the timber on the land, when, as far disclosed by the plea, the defendant had sufficient opportunity to inspect the same and was not prevented from so doing by any artifice or fraud of the vendor, but relied upon the latter’s representations as to these matters. Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353); Tindall v. Harkinson, 19 Ga. 448; Stone v. Moore, 75 Ga. 565; Martin v. Harwell, 115 Ga. 156 (41 S. E. 686).” Nor is it within the ruling in Arthur v. Brawner, ante, 477, and other similar cases.
(d) If the defendant knew of the insolvency of the bank at the time of the trade, he knew the stock was worthless. If, knowing the stock was worthless, he stated to the plaintiff, in negotiating the trade, that the stock had a cash value of $100 a share and was well worth on the market $80 a share, and the plaintiff accepted and acted upon such statement to his injury, the defendant would thereby have committed actual fraud. It is not apparent how the plaintiff could have ascertained the insolvency of the bank, otherwise than by asking the. officers, and he had the right to accept the statement of the defendant as an officer on that subject.
In the instant case the official connection of the defendant with the bank, affording him opportunity for knowing the condition of the bank, was a fact to be considered by the jury in de
On request of the attorneys for the defendant the court instructed the jury: “I charge you as a matter of law that no fiduciary or confidential relation has been shown to exist between the parties in this ease; as the confidential relation between contracting parties which will authorize one of them to neglect the ordinary precaution of the prudent man, and to rely upon the representations of the other, arise only where one party is so situated as to exercise a controlling influence over the will, conduct, and in
A ground of a motion for a new trial should be complete within itself. It does not appear in the ground wherein the following incomplete instruction was harmful to the movant: “When from any reason one party has a right to expect full communication of the facts from the other where one party knows that the other is laboring under a delusion with respect to the property sold or the condition of the other party, and yet keeps silence; when the concealment is of intrinsic qualities of the article which the other party, by the exercise of ordinary prudence and caution, could not discover.”
“It is not cause for a new trial that the court read in charge to the jury a code section, part of which was applicable to the case and part not; it not appearing that the reading of the inapplicable part was calculated to mislead the jury or was. prejudicial to the rights of the losing party.” Martin v. Hale, 136 Ga. 228(2) (71 S. E. 133). The court gave in charge Civil Code §§ 4624, 4625, as follows: “Suppression of a fact material to be known, and which' the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case. Fraud may be consummated by signs, or tricks, or through agents employed to deceive, or by any other unfair way used to cheat another.” While the portions of these sections relating to confidential relations between the parties and consummation of fraud by signs and tricks, and through agents employed to deceive, were not authorized by the evidence, they were not cal
An exception to a decree is not ground of a motion for a new trial. There should be a direct exception in the bill of exceptions.
The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.
Judgment affirmed.