69 Ga. 78 | Ga. | 1882
Charles H. Dudley, the plaintiff below, brought his action of deceit against Isaac L. Smith, the plaintiff in error, to recover of him $300.00, because of his wilful, fraudulent and deceitful misrepresentations of the number of acres of land contained in a certain tract sold by the said Smith to the said Dudley.
On the trial, the facts shown by the testimony were that Smith sold the land in question to one Vickers, who had paid all the purchase money except $74.00 and had only a bond for titles ; that some three years after this sale to Vickers, he sold to Dudley; that after they had traded, they went to Smith to pay him the unpaid balance due on the land, and to get him to make a deed directly to Dudley instead of making it to Vickers; that Dudley had the deed written conveying to him one hundred and thirteen acres of land, which, when presented to Smith, he refused to sign, because the words more or less were omitted, stating to Dudley that these words were customary in all deeds , that he had never made a deed without them; that there might be more or less than one hundred and thirteen acres ; he did not know how many there were;
The jury, under the charge of the court, returned a verdict for the plaintiff for the sum of $100.00, whereupon the defendant moved for a new trial, which the court refused, and upon this error is assigned.
The grounds in the motion for a new trial are, substantially, that the finding of the jury was against law and evidence; against the charge of the court, because the judge instructed the jury that if the defendant had been stubbornly litigious, or had caused the plaintiff unnecessary trouble and expense, they might allow the expenses of litigation including counsel fees, which were allowed by the jury, when there was no evidence whatever as to the same; that the judge excluded from the jury the plat offered in evidence by the defendant, and which was used in connection with the execution of the deed.
The evidence shows that the plaintiff never purchased the land from Smith at all, but, on the contrary, that he bought it from Vickers, and the trade between them had been concluded before they went to Smith, or he had any connection whatever with the bargain. If Dudley were deceived, it was certainly not done by Smith, for he expressly stated to him that he had no personal knowledge of the land whatever, but that he relied upon a plat which he had, and which he had had made by the surveyor of the county. His sale of the land had been made three years
The evidence of the wilful misrepresentation of a material fact; or the knowledge of a falsehood ; or the fraudulent or reckless representation of a fact as true, though not known to be false, yet intended to deceive,- does not appear against the plaintiff in error in this record. To have found for the plaintiff below, the evidence should have shown the defendant guilty of those wrongs which constitute the essential elements of the action.
To entitle a plaintiff to recover, in any case, he must support his allegations with proof; that is to say,he must prove the case he makes, and especially should this be so when moral and legal wrong are both alleged as the foundation of his action. In this case it does not appear to us to have been done, and a new trial is therefore ordered.
Judgment reversed.