Morris Plan Bank v. Baggarly

23 S.E.2d 271, 68 Ga. App. 714

• Court: Court of Appeals of Georgia
• Decided: November 27, 1942
• Docket: 29614, 29615.
• Status: Published

Opinion

Per Curiam.

The original note was for $1800, signed January 8, 1940. Two payments were made on it and the remaining part of the indebtedness, declared on, was evidenced by another note signed June 14, 1940, for $1200. The misrepresentations in question were stated in a letter dated March 5, 1940. No additional money or property was parted with by the bank at the time of or subsequently to the alleged misrepresentations. Thus it seems to us that there was a lack of proof as to one of the essential elements of fraud and deceit dealt with and discussed in Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 S. E. 2d, 176) : “That the plaintiff sustained the alleged loss and damage as the proximate result of [the alleged misrepresentations] having been made.” The proof did not support the allegation of deceit contained in the- amendments to the petition. The court did not err in directing a verdict to this effect. The record contains evidence that the debt was due, and no evidence that the defendants did not owe the debt sued for, and the court directed a verdict for the $1200 sued for, with interest. Therefore the verdict which the court directed was correct, under the record of this case. Even if it was error to allow the amendments, such was harmless to the defendants.

On rehearing the original opinion in this case is withdrawn and the original judgment entered is vacated, the foregoing being substituted in lieu thereof.

Judgment affirmed on the main bill of exceptions. Gross-bill dismissed.

MacIntyre and Gardner, JJ., concur. Broyles, G. J., dissents.