9 Ga. App. 659 | Ga. Ct. App. | 1911
The plaintiff sued upon a promissory note for $200, representing the unpaid balance of the purchase-price — $650— which the defendant was to give for a tract of land as to which he held a bond for title containing the description set forth in the Erst headnote. The defendant pleaded that the tract contained only fifty-five acres, and claimed an abatement of the purchase-price accordingly. The jury “split the difference” between the parties, and gave the plaintiff judgment-for only $100. The charge of the court is not in the record, but the trial judge certifies as being true a ground of the motion for new trial which complains that the court neglected and refused to charge the jury that the sale was by the tract or body, and that, to be entitled to an apportionment 'or rescission, the vendee would have to show intentional fraud and-deception on the part of the vendor. The vendee is not entitled to an apportionment of the purchase-price unless 'both fraud and deficiency are shown. White v. Adams, 7 Ga. App. 764 (68 S. E. 271), and cases cited therein. Even though the quantity is specified as “more or less,” a gross deficiency may be sufficient to justify a finding of wilful deception or of mistake amounting to fraud, so as to authorize “an apportionment of the price according to relative value.” Civil Code (1910), § 4122. The deficiency in such cases is not conclusive of fraud, but is evidentiary of it. The apportionment when made should be in accordance with the rule' of relative value. There are cases where the apportionment according to relative value is not to be determined by a mere comparison of the number of acres described in the bond for title with the admitted deficiencjr, though that is the ordinary rule by which the calculation is to be made. See White v. Adams, supra. In this case there