15 S.E.2d 783 | Ga. | 1941
Rulings on instructions to jury on the trial of a suit to rescind a contract for sale of realty on the alleged ground of mistake as to the identity and location of the property, induced by acts and representations by the seller's agent, amounting to constructive if not actual fraud.
1. "Equity will not reform a written contract, unless the mistake is shown to be the mistake of both parties; but it may rescind and cancel upon the ground of mistake of fact material to the contract of one party only." Code, § 37-207. Equity will grant appropriate relief for a mistake of fact by one party, accompanied by fraud on the part of the other, just as in cases where there is mutual mistake. Lynch Enterprise FinanceCorporation v. Realty Construction Co.,
2. "Accord and satisfaction is where the parties by a subsequent agreement have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction, where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract." Code, § 20-1201.
(a) Whether an agreement amounting only to an accord may be enforced by suit, the petition considered with the copies of letters attached did not show such a definite and unconditional agreement in the nature of an accord as would constitute a complete contract; and for this reason the court erred in not sustaining the grounds of special demurrer assailing the plaintiffs' allegations and prayer seeking enforcement of the alleged agreement for rescission. See Code, §§ 20-101, 20-108;Lowry v. Sloan,
(b) The case differs on its facts from Woodall v.Williams,
3. "If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not relieve." Code, § 37-211. "The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby." § 37-212. The charge to the jury was not erroneous, as contended, on the ground that the two *491 principles just quoted were inconsistent and conflicting. The latter principle is a mere amplification of the former, with an exception in the sentence, "Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby." The statement of the general rule, together with such exception, did not reasonably tend to mislead or confuse the jury, and therefore did not afford ground for a new trial. Werner v. Rawson, supra.
4. The court charged the jury as follows: "I charge you, gentlemen, that the duty rested upon J. Kuniansky Inc., in entering into this transaction, to exercise diligence to protect its own interests. The amount of diligence which the law requires to be exercised in such case is that diligence which is ordinary and reasonable under the circumstances. If that degree of diligence was exercised, the legal requirement as to diligence would be complied with. If that degree of diligence was not exercised, the plaintiffs would not be entitled to the relief sought in this case." The movants contended this charge was error, for the reason that under such charge the purchaser would be barred by negligence in protecting its own interest, whereas this would not be true unless such negligence amounted to a violation of duty to the seller and resulted in prejudice to him.Held, that the charge amounted to an instruction that in no event would the plaintiff be entitled to rescission unless it exercised that degree of diligence which is reasonable and ordinary under the circumstances, and thus necessarily excluded the principle that "Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby." The charge was erroneous as contended, and under the pleadings and the evidence the error required the grant of a new trial. Compare Green v. Johnson,
5. Under the rulings in paragraph 2 above, relating to the alleged agreement for rescission, there was no merit in grounds 8, 9, *492 and 10, complaining of a failure to charge, refusal of a requested charge, and a charge as given, and relating in each instance to such agreement.
6. The assignments of error do not call for a decision on whether in the event of a rescission the purchaser would be entitled to interest on the amount of such purchase-money as it might recover. Even if it is not entitled to recover interest as prayed, this would not defeat the action as a whole. See GeorgiaRailroad Banking Co. v. Smith,
7. For error in the charge to the jury, as indicated above, the judge erred in overruling the motion for a new trial. The judgment being reversed for this reason, no ruling is made as to the sufficiency of the evidence to support the verdict in favor of the defendant.
8. For the reasons stated in paragraph 2 above, the judgment on the cross-bill of exceptions must be reversed in part.
Judgment reversed on the main bill of exceptions; reversed inpart on the cross-bill. All the Justices concur.