160 Ga. 612 | Ga. | 1925
C. L. Maxwell brought suit against A. M. Grant and Mrs. Cora Grant upon four promissory notes for $875 each, which were given for “part of purchase-money for a tract of land known as Watkins Mill, containing twelve and a half acres, more or less,” in Douglas County, Georgia. These notes were signed by A. M. Grant and Mrs. Cora Tate. Grant and Mrs. Tate after-wards intermarried. The proceedings to collect the notes were begun by attachment, and subsequently a declaration in attachment was filed by. the plaintiff. The defendants filed a plea and answer. They admit the execution of the notes, and that they were given for the property named, but say that they refused to pay the notes or any part thereof for the reason that the consideration has failed. It is averred in the answer that “The said C. L. Maxwell, plaintiff in this case, represented to defendants that he owned a mill on Dog River which was well patronized, and that he had averaged grinding 5600 bushels of corn per year on said mill, when in fact and in truth he has never ground more than about 3200 bushels in any one year. That said Maxwell represented to them that the community was a good, prosperous community, and that the people had freely patronized the mill, and, while it was at the time of the trade in a somewhat run-down condition or out of repair, that he would put the mill in first-class condition at the time it was to be turned over to defendants. That these representations of Maxwell were false and known to him to be false when he made the statements to defendants, as the mill and property was and is worth practically nothing in the condition it was at the time plaintiff delivered possession to defendants. That defendants paid plaintiff 'the sum of $500 at the time of making the contract, on the representations made by him as to the custom grinding which he did, which representa
The jury upon the trial of the case returned a verdict for the plaintiff. The defendants made a motion for a new trial, which being overruled, they excepted.
The court charged the jury in part as follows: “They [the defendants] also claim that they relied upon the representations made by the plaintiff as to the condition of the machinery, that they bought it on these representations, relying on the representations that he made about the condition of the machinery and property. I charge you, gentlemen, on that subject that the law is, on real estate or other property, that they can see if there are defects, if the defects are patent; whether it is real or personal property, if the defects are patent, then they are obliged to see the things that are open and can be easily seen. Where one purchasing land has the privilege of examining it before buying it, [and] instead of doing so voluntarily relies upon the statement of the vendor concerning its character and value, the contract
Another exception to this charge is as follows: “The charge herein complained of would cause the jury to believe that the fraud practiced to prevent examination would necessarily require some other fraud than making false representations by the plaintiff as to material facts on which the defendants in good faith relied and on which statement the plaintiff expected the defendant to rely.” We assume that this criticism is aimed at this part of the charge claimed to be objectionable, to wit: • “The contract will not be rescinded or set aside, or the purchase-price of the land abated, because of the falsity of such statements, unless some fraud or artifice be practiced by the vendor to prevent such examination.” The charge was not vitiated by the inclusion of this qualification in the rule as stated. It lays down a correct principle, one that has been recognized in several decisions in cases where issues were involved similar to that which we have before us now. In the case of Martin v. Harwell, 115 Ga. 156, it was said: “From the allegations of this plea it will appear that the defendant chose to rely upon the representations made by Harwell and Eogers respecting the quantity and character of the timber upon the tract of land containing twelve hundred acres. It is alleged that these representations were false and fraudulent, and that defendant was injured by relying and acting upon the same. The defect in the plea is that it did not disclose any emergency or condition authorizing the defendant to rely upon those representations without making for himself an examination of the premises.
And so we conclude that the excerpt which we have quoted above from the charge is not objectionable upon either of the grounds of exception taken. The criticisms are directed at the charge as a whole. In the main it is a correct charge; there may be certain expressions used in the charge which are neither accurate nor correct, but they should have been singled out and excepted to and the special defects pointed out. Where an excerpt from a charge is excepted to as a whole, and parts of it are correct, laying down correct principles of law applicable to the case, the judgment of the lower court refusing a new trial will not be reversed upon this ground, though there may be some expressions used in the charge which were not correct nor accurate.
The claims of fraud upon the part of the plaintiff made by the defendants in their answer were put in issue by the evidence for the plaintiff, and it was within the province of the jury to decide this question.
■.Judgment affirmed.