24 S.E.2d 772 | Ga. | 1943
1. The trial court, and not the Supreme Court, has authority to correct errors that appear in the record of the trial court. Where it appears that the record in the Supreme Court is sufficient for a decision on the questions raised by the bill of exceptions, and that additional record requested by one of the parties would not materially affect the case, this court will not require that the additional record be certified and sent up.
2. The petition is by one partner against the other, seeking dissolution of the partnership and setting forth claims necessitating an accounting. It is therefore sufficient to withstand the general demurrer, and the court did not err in overruling the same.
3. The special demurrers assailing that portion of the amended petition which sets forth claims against the defendant, upon the grounds that it is too general and indefinite, and that the claims are not itemized and dated, are without merit. A petition for an accounting need not be more definite than to contain allegations which show that on an accounting the petitioner will likely be entitled to recover judgment for some amount. Gould v. Barrow,
4. Whether or not the confidential relationship of partners applies to transactions outside of the scope of the partnership, it does not apply here, where it appears that the partnership was not in existence at the time of the transaction under consideration. Since there was a total absence of such confidential relationship, the petitioner was not entitled to avoid his obligation under a deed and notes signed on March 10, 1937, upon the ground that he relied upon representations of the defendant which misrepresented the nature and content of the papers signed, and because he did not have his glasses and could not read without them, but abandoned his expressed desire to go by home and get his glasses because he trusted the defendant.
The petition further alleges, that in August, 1937, the petitioner paid the defendant in cash $514.50, in settlement of a note for that amount; that he requested his note, and the defendant said it was at home; whereupon they went to the home of the defendant to get the note, but the defendant was unable to find it. The petitioner asked for a receipt for the money, but the defendant said he would deliver the note in a few days, saying also that there was nothing against the plaintiff and nobody would get the note; that on at least two subsequent occasions the petitioner went to the defendant's home to get the note, and he was finally informed by the defendant that he had found the note and had burned it, and that there was nothing on record against petitioner for the land. In August, 1938, the petitioner and defendant jointly procured a loan from the Federal Land Bank and Land Bank commissioner, executing a deed on the land jointly owned by them to secure the loan, and representing that other than the existing loan, which was to be paid with the proceeds from the present loan, there was no lien against the land. Paragraph 10 avers that in 1940 the defendant said he was in need of money, and petitioner advised him that he could not let him have any, because he had already overdrawn his share of the profits; that thereupon the defendant angrily informed the petitioner that he wanted him to pay $514.50 due on the purchase-money of the land, saying the note was on record. The petitioner's search of the deed records revealed that on April 8, 1940, there was duly recorded a security deed from petitioner to defendant, dated March 10, 1937, conveying a half interest in the land above described, to secure the payment of four notes of $514.50 each. The petitioner alleges, that this security deed is not the act of the petitioner; that if he signed it or the notes, he did not know what they were at the time; that he was *649 misled, deceived, and misinformed by the defendant; and that if they were executed as they purport to have been, the defendant perpetrated a fraud upon petitioner by stating that he was signing only a note; that the defendant is now advertising the land for sale under the security deed, to pay the notes secured thereby; that the defendant is insolvent and unable to respond in damages, and the petitioner will suffer irreparable loss unless equity will prevent the sale. Other portions of the petition set forth general figures alleged to represent the results of the joint operation of the farm for the years 1937, 1938, 1939, and 1940. It purports to set forth the net profits and losses resulting from such operation, together with the amounts which the defendant has withdrawn. These amounts are not broken down to show the various items and dates thereof, but they do show that upon an accounting the defendant will likely be indebted to the petitioner in some amount. The prayer is for injunction to prevent the sale under the security deed, for appointment of an auditor, for an accounting, a dissolution of the partnership, judgment; and for general relief.
The defendant's general and special demurrers were overruled; and he excepted pendente lite to that judgment. The trial resulted in a verdict and judgment for the plaintiff, for the cancellation of the security deed and judgment for $1800. The defendant's motion for a new trial was overruled, and he excepted.
1. The defendant in error has suggested in writing a diminution of the record, as provided in the Code, § 6-812. It is stated that the motion for a new trial was overruled and denied by an order dated November 14, 1942; that on November 16, 1942, at the request of movant, the court ordered further argument on the motion, and on November 23, 1942, the court refused to set aside the judgment denying the motion, but ordered that the judgment originally dated November 14 be changed in date to November 23, in order to give ample time to except. The suggestion recites that the original order dated November 14 appears on the minutes of the court and the date is written with a typewriter, and that the date has been changed with a pen by writing thereon the date "23rd." The bill of exceptions assigns error on a judgment dated November 23, 1942, overruling *650
the motion for a new trial. The judgment appearing at page 183 of this record, dated November 23, 1942, and signed by the trial judge, recites that "after duly considering the above motion for a new trial, and after a hearing had thereon, it is ordered by the court that the motion for a new trial heretofore filed by L. E. Hancock in the above matter be denied, and a new trial is hereby refused." If the suggestion of the diminution of the record is made for the purpose of correcting what is thought to be error in the record of the trial court, then it should be obvious that the trial court, and not the Supreme Court, is the proper one in which to seek a correction of such errors.Beecher v. Carter,
2, 3. These headnotes do not require further elaboration.
4. The grounds of special demurrer assailing those portions of the amended petition which seek to avoid the security deed and the four notes thereby secured, dated March 10, 1937, on grounds of alleged fraud, are meritorious. Both the allegations of the petition and the brief of counsel in support thereof seek to sustain petitioner on this point upon the basis that a confidential relationship existed by virtue of a partnership. The provisions of the Code, §§ 37-707 and 75-201, together withWimberly v. Ross,
But it is further argued, that, independently of a confidential relationship, the petitioner was authorized to rely upon the defendant, and that the defendant perpetrated a fraud upon him, relievable in equity. He cites Chapman v. AtlantaGuano Co.,
In Dortic v. Dugas,
In Lewis v. Foy, supra, it was held that the absence of one's glasses, where there was no emergency requiring immediate action, was not sufficient to justify that one in relying upon the representation of the other party as to the nature and content of the written instrument executed. That decision is authority for a ruling here that the absence of petitioner's glasses did not excuse him for relying upon representations of the defendant as to the nature and content of the papers he signed. There was no trick or artifice upon the part of the defendant which prevented the petitioner from procuring his glasses, if need be, and reading for himself the notes and deed which he signed. And while it is alleged that the defendant said he would read the papers, it is not alleged that he did read them. As stated by Judge Bleckley in *653 the above quotation, "he deliberately measured his liability in dollars and cents, . . and he signed and sealed the evidence which he must have known might be used as a guide to the courts in administering remedies against him to enforce his liability." The allegations of the petition which seek to avoid the security deed and notes executed on March 10, 1937, are insufficient for that purpose, and should have been stricken on demurrer. The court erred in overruling the special demurrers attacking these portions of the petition.
Judgment reversed. All the Justices concur.