Cook v. Banks

22 S.E. 138, 95 Ga. 229

• Court: Supreme Court of Georgia
• Decided: December 21, 1894
• Status: Published

Opinion

Lumpkin, Justice.

1. We are cheerfully willing to give due and conscientious obedience to the enactments of the General Assembly with reference to proceedings and practice in this court. While we honestly think there has been in some instances legislation too favorable to incompetent or negligent practitioners of the law, we are not inclined to question the authority of the lawmaking power to take care of those who either cannot or will not take proper care of themselves, nor do we wish to be understood as protesting against the exercise of such authority. After all, we have little doubt that the real purpose of the General Assembly in so legislating has been to guard the rights of parties, and not merely to shield delinquent attorneys from the consequences of their professional sins of omission or commission. In the spirit above indicated, we have faithfully endeavored to find a way to practically enforce that portion of the act of December 18th, 1893, which is quoted in the head-note, but have been unable to do so. The difficulties in the way are pointed out in the head-note itself, and are so obvious as to be apparent at a mere glance. If the General Assembly will indicate even loosely how bills of exceptions are to be amended, and define some sort of procedure for accomplishing this purpose, we will carry out their wishes to the best of our ability.

2. This was an action upon a promissory note given to Banks by Cook for the purchase of land. The defense was, in substance, that the laud was sold by the tract, and was described in the bond for titles given to the defendant as containing 600 acres, “more or less”; that the seller had falsely and fraudulently, or through mistake amounting to fraud, represented to the defendant that the tract did in fact contain 600 acres, but upon subsequent careful and accurate survey, it was found to contain only 471 acres. The court was requested to charge: “If you believe from the evidence that Cook did not have equal opportunity with Banks to judge of the number of acres, and Banks misrepresented to Cook the number of acres by mistake and innocently, and Cook acted on said misrepresentation to his detriment, Cook would be entitled to apportionment of price, to he measured by the deficiency, if deficiency be shown, and was gross.” This request was properly refused. Its vice was that it assumed that the deficiency in question would, as matter of law, absolutely entitle the defendant to an abatement in the price, although there was no actual fraud perpetrated by the seller, and although the deficiency may not have been “so gross as to justify the suspicion of willful deception or mistake amounting to fraud.” See Code, §2642. The deficiency was, in the present case, very large. We do not mean to say that the jury would not, as matter of fact, in view of the entire evidence, have been authorized to find that it was sufficiently large to authorize an apportionment in the price, under the provisions of the section above cited; hut whether or not they should so find was a question for them, upon which the court rightly declined to pass.

Further complaint was made because of the following charges to the jury: (1) “Now, you have the case before you; and in the first place, you will determine whether the deficiency is so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. Consider the property, the number of acres, the improvements upon the property, and all the circumstances connected with the sale.” (2) “You will observe that the law is: in any deficiency in land so gross as to justify the suspicion of willful deception, you must have, in the first place, in order to find for the defendant, the suspicion of willful deception; and in order to arrive at that conclusion, you will get all the language of the bond for titles and the language of the contract previously entered into and which was consummated by the bond for titles, and all the circumstances, as I said, in connection with the ease. But our Supreme Court has said, in a recent decision, that even this is not sufficient to have a deduction on account of the deficiency — not even that of the suspicion merely of willful deception or mistake amounting to fraud; that that is not sufficient; but it also says that if you have that suspicion of willful deception or mistake amounting to fraud, that then you must come to the conclusion as to whether there was fraud by willful deception or mistake amounting to fraud practiced by Mr. Banks upon the defendant Cook; and if you come to that conclusion, he would then be entitled to deduction pro rata of the number of acres which the tract of land has fallen short.”

"We confess that these instructions, taken by themselves, are not perfectly clear nor free from verbal inaccuracy. It is evident, however, that the judge was endeavoring to state to the jury the doctrine laid down by this court, through Chief Justice Bleckley, in Estes v. Odom, 91 Ga. 600; and taking these isolated and fragmentary extracts in connection with the whole charge, we cannot but reach the conclusion that the judge’s purpose wras substantially accomplished.

We think there was sufficient evidence to warrant the finding in the plaintiff's favor; and on the whole, have concluded to allow the verdict to stand.

Judgment reversed.