187 Ga. 1 | Ga. | 1938
1. The first count of the petition stated a cause of action for the relief sought, on the theory of a mutual mistake of fact. “In all cases of a mistake of fact material to the contract or other matter affected by it, if the party complaining applies within a reasonable time, equity will relieve.” Code, § 37-206. “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. Belief 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. It does not appear from the allegations of this count of the petition that the petitioners were guilty of “that want of reasonable prudence the absence of which would be a violation of a legal duty,” and it does appear that the “other party has not been prejudiced thereby.” The court did not err in overruling the general demurrer to count 1 of the petition.
3. Under the pleadings’ and the evidence the court did not err in giving in charge to the jury the definition of fraud embodied in the Code, § 37-702.
4. Nor did the court err, for any reason assigned, in charging the jury that “if there was a mutual mistake between these parties as to the amount of the debt due to the plaintiffs in this case, that is to say, that both of them were mistaken about it, just a mistake involving both sides, the plaintiffs would have the right to an adjustment and have a right to the relief they are seeking, unless they were guilty of such negligence as, in your opinion, would deny them the right to recover.”
5. The evidence authorized the verdict, and the court did not err in overruling the motion for new trial.
Judgment affirmed.