Smith v. Merck

Full title: SMITH v. MERCK

Court: Supreme Court of Georgia

Date published: Jan 12, 1950

206 Ga. 361 (Ga. 1950)

57 S.E.2d 326

Opinion

16879.

JANUARY 12, 1950.

Cancellation. Before Judge Edmondson. Hall Superior Court. August 19, 1949.

E. C. Brannon and Smith Stephens, for plaintiff in error.

Dunlap Dunlap, William P. Whelchel, and Victor Royal, contra.

1. A petition seeking cancellation of a deed executed by the plaintiff to the defendant on the ground of false and fraudulent representations — where the allegations show that a confidential relation existed between the parties, and that by reason of poverty the plaintiff was unable to return or offer to return any benefit she might have received, and offering to do equity, in view of all the allegations in the petition — stated a cause of action as against a general demurrer.

2. The court properly overruled a motion for a mistrial, made on the ground that counsel for the plaintiff, on cross-examination of a witness for the defendant, in reply to a question propounded by the court as to counsel's reasons for asking the question which had been objected to by counsel for the defendant, stated what he (counsel) contended the witness had said to a third person, where it appears that the objection of counsel for the defendant was sustained.

3. The portion of the court's charge to the jury on which error was assigned in ground 5 of the motion for a new trial, though inapt and not authorized by the pleadings, when taken in connection with the verdict, showed that no harm or injury was done to the defendant, and will not require the grant of a new trial.

4. Where the trial judge in the exercise of a sound discretion denies a new trial, and where no substantial error of law appears from the record, and the evidence, though slight, is sufficient to authorize the verdict returned, such judgment will not be disturbed.

No. 16879. JANUARY 12, 1950.

Mrs J Carlton Merck filed an equitable petition against Ed Smith, praying for a decree canceling and rescinding a warranty deed executed by her on March 19, 1948, conveying a certain house and lot in Gainesville to the defendant. The original petition alleged substantially: In January, 1948, the plaintiff entered into a lease with the defendant for a term of five years for several rooms in her home (the subject-matter of this suit). The defendant, upon becoming aware of an indebtedness the plaintiff owed to one A. C. Maynard in the sum of $2100, secured by a loan deed on her home, represented to her that the said Maynard thought the defendant was insane, and was greatly worried for fear of loss of his money, and wanted his money immediately. The defendant became exceedingly solicitous of the plaintiff, and represented to her that he desired to help her; that he knew she was an old lady, "and that he would attempt to help her borrow the money necessary to pay the indebtedness to said Maynard"; and in March, 1948, the defendant represented to her that he thought he knew of a man who would lend some money on her property, "but that it would first be necessary to transfer the property to him." One amendment to the petition added to this quotation, "or to some one else by means of a loan deed." The petition further alleged: The defendant represented that the consideration could be anything, and suggested it should be $5000 or $10,000. The plaintiff relied on the false representations made by the defendant, and instructed a local attorney to check the deed records to determine the description of her property, and to prepare a deed, and the defendant went by the attorney's office and secured a warranty deed, wherein the plaintiff conveyed her property to the defendant upon an alleged consideration of $10,000; and "while representing to her that it was necessary for this to be done before she could obtain the money to pay Maynard, defendant urged her to sign the deed." The plaintiff was, by reason of her age and long illness, incapable of comprehending and understanding the fraudulent scheme presented to her by the defendant. The defendant did not pay or agree to pay the plaintiff any part of the $10,000 stated as the consideration in the deed, but led her to believe that such transaction was necessary in order that she might borrow some money on her property. The defendant borrowed $3100 from one Gilstrap and executed to him a deed to secure the debt, and out of the sum so borrowed turned over to the plaintiff $3000, which he said was the amount of money he was able to obtain. The plaintiff used part of this amount to pay off the Maynard indebtedness. The defendant subsequently borrowed $1000 from one Pethel and Southern Finance Company, and gave to them a deed to secure debt conveying the plaintiff's property as security. The plaintiff knew nothing of the effect of those acts until June, 1949, when, after she had agreed to sell her property to one Ward for $14,000, it was discovered that the title to her property was in the defendant. The defendant obtained the property through misrepresentations, fraud, and undue influence. The plaintiff is ready and willing to execute a security deed to Gilstrap in the sum of $3100, or to pay the loan in full. The defendant is endeavoring to sell the property as his own. The prayers were that the deed from the plaintiff to Ed Smith be decreed to be rescinded, null and void, and canceled of record, and for a general judgment against the defendant for $1000.

The defendant filed a general demurrer to this petition, and subsequently the plaintiff tendered another amendment, in which she alleged that the property in question was the only property she had of any substantial value; and that, on account of her financial inability, she was unable to make any tender or offer to the defendant any amount whatever, and will be able to restore only in the event the deed to the defendant is set aside and canceled, but she offered to assume any legal indebtedness due to the defendant in equity and good conscience, if the property is restored to her ownership. The defendant objected to the allowance of said amendment on the grounds: (a) the petition did not contain enough to amend by; (b) the amendment was offered too late in point of time; and (c) it set forth no reason sufficient in law to relieve the plaintiff of the duty of offering to make restitution before instituting the suit. These objections were overruled, and the defendant filed exceptions pendente lite. Thereafter, the court overruled the defendant's general demurrer to the petition as amended, and exceptions pendente lite were filed to this order.

The defendant in his answer denied the material allegations of the petition. He denied the allegation that he had made any false or fraudulent representations to the plaintiff, and alleged that he had agreed, upon a consideration of $10,000, to purchase the property of the plaintiff, and that said consideration was to be paid by the assumption of indebtedness existing on the property, and by supporting and maintaining her during the remainder of her natural life.

The case proceeded to trial, and the jury returned a verdict "in favor of plaintiff. Also $500 of thousand borrowed from Pethel," and a decree was thereupon entered, giving the plaintiff a judgment against the defendant for $500, canceling the deed from the plaintiff to the defendant, and vesting title to the property in the plaintiff subject to the two security deeds which the defendant had executed to Gilstrap and to Pethel and Southern Finance Company. The defendant thereupon filed a bill of exceptions, assigning error on the interlocutory orders and the order overruling his motion for a new trial as amended.

Counsel for the defendant in their brief strenuously urge that the verdict of the jury was contrary to the evidence, and therefore we briefly summarize the evidence adduced at the trial, as follows:

The plaintiff testified in substance: She was 76 years of age, and for about ten years had been ill with an enlarged weakened heart, dropsy, and high blood pressure, and she lived from the property in dispute. The first contact she had with the defendant concerning the house was the time she rented the same to him for five years at a rental of $25 per month, under his agreement to furnish her meals. Shortly after moving into her home he began to show interest in her business affairs, and told her that Maynard was going to beat her out of her property. She told the defendant that she wished she could borrow $3000 somewhere to take up the Maynard mortgage, and he told her that, if she would fix him a deed to the place, he could get her $3000, but did not say from whom he was going to get the money. She instructed Mr. Brannon, an attorney, to make deeds, one a warranty deed, and a loan deed. After seeing Brannon, the defendant came out and carried her to Skelton's filling station. She did not have her glasses, and can not see without them. She thought the deed she signed was a loan deed. The defendant told her he wanted her to sign a loan deed, and she believed the deed she signed was a loan deed. The defendant was to get the money with the loan deed she supposed she had signed, and he did and brought her $3000. The defendant did not pay her anything for the making of the deed, nor offer to pay her anything. After the deed was made, he came to her and said everyone in town was talking about her and said that she was crazy, and wanted to get some papers as to her sanity, and she got such papers from two people. She did not discover that she had made a warranty deed instead of a loan deed until some time later, when she was informed that her insurance had lapsed.

On cross-examination by Mr. Brannon, of counsel for the defendant, she testified: "I did not tell you then I wanted a deed made to Ed; I said I wanted a loan deed made."

E. P. Lockhart testified for the plaintiff, that in his opinion the plaintiff's home place was reasonably worth $12,000. A daughter of the plaintiff testified that her mother had no property other than the home place.

J. D. Skelton testified for the defendant, that he operated a service station in Gainesville and knew both the plaintiff and the defendant; that on or about March 19, 1949, these parties requested him to sign as witness to a deed; that he asked Mrs. Merck if she was selling her property, and told her it was a warranty deed that she was signing, and she answered that she knew it. The deed was handed to the witness by the defendant, and he witnessed the signature as a notary public. As far as he knew, this was the first time the plaintiff had ever had the deed in her possession.

Jack W. Morris testified for the defendant, that he signed the deed as a witness, but did not hear any conversation between the plaintiff and the defendant. Several witnesses for the defendant testified that after March 19, 1948, the plaintiff had stated to them that she had sold her place to the defendant.

The wife of the defendant testified: After she and the defendant moved in the plaintiff's house, she prepared and served meals for Mrs. Merck, and even to the time of the trial the relations between the plaintiff, the defendant, and the witness had been cordial and agreeable. The witness never did hear any conversation between the plaintiff and the defendant regarding a loan deed, but did hear a discussion between them as to making some papers, and the plaintiff said that she was going to sell the property to the defendant because her children had not treated her right and had not been to see her. After they moved into the plaintiff's home, they paid her rent for three months. After moving in, the plaintiff stated that, if she did not sell her home, she would be forced to borrow some money, and if the defendant bought the place, he could have it for $10,000, and she was to live there as long as she lived; and in addition, the defendant was to give her money along as she asked for it, and the defendant said that after her death, if he did not feel like he had paid it all, he would pay the remainder to her son. As long as the plaintiff lived with them, the defendant was to look after her and not pay any more rent after then. In the witness's opinion, it would cost about $60 per month to board the plaintiff, and where they had to furnish her everything it would cost more than $100. Her husband furnished everything the defendant had to have, and gave her money occasionally, and furnished lights and telephone.

Carl Duke testified that he had several times carried food out to the home of Mrs. Merck, which was sent from the Smith cafe.

The defendant testified: The plaintiff had tried to borrow money on her own name and had not succeeded, and she told him that she would sell him the place. The defendant later asked her what she would take for it, and she said she would make him a good price, that she owed some money and could not get it up, and that, if the defendant would get up the amount she owed or a little more, she would make the place over to him provided he would let her live with him the rest of her life, and she informed him that she owed $3000. The defendant in a day or two told her that he could get the money, and she said that she would call Mr. Brannon and have him come out and make out the deeds. She said that she would make the consideration $10,000, and the defendant was to give her $3000 and she was to live with him the rest of her life. He had already paid her the $3000 at the time she delivered the deed to the defendant, and they talked about the amount of the deed, and he offered to give her a note, and she said it would not be necessary, because she did not want anybody to know about this transaction. The general physical condition of the plaintiff was good, and had not changed since the defendant first knew her. The defendant was not present at any time when she gave the attorney information as to the preparation of the deed, but after she had informed him that the deed had been prepared he went by the office of the attorney and carried the deed to the home of the plaintiff and showed it to her, and he then carried her down and she signed it. Since he had received the deed, the defendant had continued to furnish the plaintiff food, and often gave her money. He was present when J. D. Skelton had his conversation with the plaintiff, and Mr. Skelton asked her if she was selling this place to the defendant, and she said "Yes." The defendant did not exactly know how much money he had paid out on the house or for feeding the plaintiff, but would say it would amount to about $55 or $60 per month.

On cross-examination, he testified: He had not told the plaintiff that any one said that she was crazy, or that Maynard or any one else was going to take the property from her. He paid the plaintiff $3000, and offered her a note for the balance, and she said she did not want it. As far as he knew, the plaintiff's health was good at the time the deed was made, and she had treated him like a son, but he did not feel that he was as close to her as if the relation of parent and child existed. She confided in him and told him everything about her business, and told him of the Maynard mortgage. The defendant had given her in addition to the $3000 about $450 in money, and she had several small debts that she wanted to pay and he paid them, one being the charge for putting an awning on the house, and in addition he paid a telephone and other house bills. He borrowed the $3000 from Gilstrap, though the note to him, Gilstrap, called for $3100, and paid him $100 interest and delivered the balance to Mrs. Merck. He borrowed $1000 from Southern Finance Company, and used that money to buy oil to keep the house warm. He had been living in the larger portion of the house since he moved out there, and owed the plaintiff "an unpaid balance of $7000 less her living out there and the money she got from him." The cost of looking after her and feeding her would be about $720 per year. In his opinion, the whole house for rent would be reasonably worth $50 to $60 per month. The part occupied by his family would be worth for rent about $420 per year, and for services and care in looking after the plaintiff she would owe him about $300 per year.

E. C. Brannon, testifying for the defendant, stated that he was a practicing attorney of Gainesville; and that the plaintiff informed him that she wanted a deed prepared from her to the defendant, conveying her home for a consideration of $10,000. He prepared a warranty deed, and the plaintiff did not mention anything to him about a loan deed, and he did not recall having seen the defendant at all in connection with the making of the deed. He considered that he had been employed by Mrs. Merck for the purpose of preparing such deed.

The plaintiff introduced in evidence a warranty deed dated March 19, 1948, from the plaintiff to the defendant, expressing a consideration of $10,000, and recorded on April 8, 1949; also a loan deed from the defendant to Lee Gilstrap dated April 2, 1948, and recorded April 8, 1948, and a loan deed from the defendant to D. T. Pethel Jr. and Southern Finance Company. expressing a consideration of $1000, dated May 15, 1948, and recorded May 25, 1948.

The defendant introduced in evidence a lease dated January 19, 1948, from the plaintiff to the defendant, and receipts for house rent for three months.

ALMAND, Justice.

1. (a) Where one expressly authorizes another to act for him in a particular transaction, the relation of principal and agent arises. Code, § 4-101. "The word `agency,' both in law and as used in every-day affairs, may have various meanings. It may refer, and perhaps most often does, to that relation `created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary power to another, who undertakes to manage the affair and render to him an account thereof.' Burkhalter v. Ford Motor Co., 29 Ga. App. 592, 599 ( 116 S.E. 333), citing 1 Am. Eng. Enc. Law, 937; Atlanta Accident Asso. v. Bragg, 102 Ga. 748 ( 29 S.E. 706). The American Law Institute, in defining the word `agency,' adopted the almost universally recognized definition as follows: `Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.' Restatement, Agency, § 1." Washington National Ins. Co. v. Savannah, 196 Ga. 126, 129 ( 26 S.E.2d 359).

(b) Loyalty to his principal is the primary obligation of the agent. Code, § 4-205; Sessions v. Payne, 113 Ga. 955 ( 39 S.E. 325); Arthur v. Ga. Cotton Co., 22 Ga. App. 431 (2) ( 96 S.E. 232). The relation of principal and agent is a fiduciary one, and if the agent obtains any advantage or profit out of the relationship to the injury of the principal, he becomes a trustee. Stover v. Atlantic Ice Coal Corp., 154 Ga. 228 (1) ( 113 S.E. 802).

(c) "Where by the act or consent of parties, or the act of a third person or of the law, one person is placed in such relation to another that he becomes interested for him or with him in any subject or property, he is prohibited from acquiring rights in that subject or property antagonistic to the person with whose interest he has become associated." Code, § 37-708. This section is a codification of the principle of law found in Larey v. Baker, 86 Ga. 468, 474, 475 ( 12 S.E. 684), which was taken from the enunciation of the principle stated in 1 Am. Eng. Enc. Law, 375. Where a vendor of land acted upon the advice of an agent or friend and confidential adviser, and made to the vendee a deed instead of a bond for title, and took notes for the deferred payment of the purchase-money, believing under the advice given that the land would be subject to the purchase-money, and the agent or friend thereafter bought the land from the original vendee, equity will relieve the vendor against the effect of the deed, and subject the land to the payment of the purchase-money, although the agent or friend practiced no fraud in inducing the vendor to make the deed. Hawk v. Leverett, 71 Ga. 675. In the opinion the court said: "It will make no difference that, at the time Leverett gave the advice to plaintiff to make the deed to Lane, he acted honestly and believed his advice to be correct, and did not then have in contemplation himself the purchase of the land from Lane. He knew, at the time he did purchase the land from Lane, what advice he had given, and that plaintiff acted upon such advice; his act in purchasing the land from Lane was an act calculated to deprive plaintiff of part, if not the whole, security for the purchase money, which she had taken under his advice. This conduct on his part is fraudulent in law, however honest he may have been when he gave the advice." P. 677.

(d) Fraud will authorize equity to cancel and annul a deed, no matter how solemnly executed. Code, § 37-709. While the terms of an absolute deed cannot be varied by limiting the grantee to a use of the land in a manner not restricted by the express terms of the deed, it may nevertheless be alleged and proved that it was induced by fraud, without denying or varying any of the stipulations or conditions contained in the deed. Baker County Power Co. v. Adkins, 169 Ga. 187 (1) ( 149 S.E. 910). Where land is owned by two persons, and one obtains a deed from the other to his interest by means of an intentionally false and fraudulent promise to sell the land at its true value and pay off an encumbrance and account for the balance, or failing to find a purchaser, he will procure a new loan to discharge the present encumbrance, and after obtaining the title he retains and claims the property as absolutely his own, this transaction by which the ownership is obtained is such a fraud as will entitle the grantor to have the deed canceled. Equity will afford relief, not because of the mere breach of a verbal promise, but because of the fraud of the grantee in procuring an absolute deed to be made to him upon his false and fraudulent representation and promise that he will use the title for the grantor's benefit. Jones v. McElroy, 134 Ga. 857 (1, 2) ( 68 S.E. 729). Where the allegations of a petition show that the promise of the grantee was the consideration inducing execution of a deed, and that it was made with the present intention on the part of the grantee not to comply with it, such petition sets forth a cause of action for cancellation. Johnson v. Johnson, 152 Ga. 300 ( 110 S.E. 211); Williford v. Swint, 181 Ga. 44 ( 181 S.E. 227); Pantone v. Pantone, 202 Ga. 733 (2) ( 44 S.E.2d 548).

(e) As a general rule, a petition in equity which seeks to cancel a deed representing a conveyance of property, but which does not allege the return or the offer to return the consideration prior to institution of the suit, is demurrable. Cabaniss v. Dallas Land Co., 144 Ga. 511 ( 87 S.E. 653); Williams v. Fouche, 157 Ga. 227 ( 121 S.E. 217). This rule is based on the equitable maxim that he who would have equity must do equity. Code, § 37-104. There are exceptions to this rule. Bowden v. Achor, 95 Ga. 243 (14) ( 22 S.E. 217). Timmerman v. Stanley, 123 Ga. 850 (5) ( 51 S.E. 760). A party is not obliged to return that which he will be entitled to retain, as a condition to a cancellation; so, if a plaintiff has received no more than he was entitled to, his offer to account for the same in adjustment of the differences between the parties sufficiently meets the requirement that he who seeks equity must do equity. Collier v. Collier, 137 Ga. 658 (3) ( 74 S.E. 275); Williford v. Swint, 181 Ga. 44 (2) (supra). As to inability on account of poverty to restore or offer to restore, and an offer to pay whatever may be found due, as coming within the exception to the general rule, see Bell v. Weyman, 99 Ga. 273 ( 25 S.E. 636); Mayer v. Waterman, 150 Ga. 613 (3) ( 104 S.E. 497); Wynne v. Fisher, 156 Ga. 656 (2) ( 119 S.E. 605).

(f) It is insisted that the court erred in allowing the amendment to the petition, objected to by counsel for the defendant, and in overruling the general demurrer to the petition as amended. We have, in the statement of the case, set out fully the allegations made in the petition as amended, and they need not be repeated here. We are of the opinion that, in the light of the principles of law and the authorities cited above in this division of the opinion, the court properly overruled the general demurrer. In addition to the cases cited, see West v. Rouse, 14 Ga. 715; Eagan v. Conway, 115 Ga. 130 ( 41 S.E. 493); Wimberly v. Ross, 152 Ga. 258 ( 109 S.E. 500); Elliott v. Marshall, 179 Ga. 639 (1, 2) ( 176 S.E. 770). We have carefully examined all the authorities cited by counsel for the defendant on the contention that the amendment to the petition failed to set forth any legal or equitable reason why the defendant should be excused from restoring or offering to restore the consideration received; and without here analyzing these cases, it is sufficient to say that in our opinion the facts of these cases are so different from those of the present case that the principles enunciated in such cases, correct as they are, have no application here. The court did not err in allowing the amendment to the petition, nor in overruling the general demurrer to the petition as amended.

2. Ground 4 of the amended motion for a new trial assigns error on the court's refusal to grant the defendant's motion for a mistrial. While the witness E. C. Brannon was testifying on behalf of the defendant, on cross-examination by counsel for the plaintiff, the witness was asked whether or not he had had any conversation with Pethel "regarding this deed to Ed Smith." Counsel for the defendant objected to the question and proof of any conversation between the witness and Pethel. Thereupon the following colloquy took place in the presence of the jury:

Mr. Royal (of counsel for the defendant): "We intend to connect it up and show that Mr. Brannon didn't have any confidence in the deed he drew up from Mrs. Merck to Ed Smith.

"The Court: `Confidence — in what way?'

"Mr. Royal: `That the deed wasn't any good.'

"The Court: `For what reason?'

"Mr. Royal: `If you will let me go ahead and I don't connect it up — it can be ruled out.'

"The Court: `No sir — I would like to know if you are trying to show Mr. Brannon knew the deed wouldn't stand up, and if so, what the grounds were.'

"Mr. Royal: `We contend that he told Mr. Pethel that the deed wasn't worth a nickel.'"

A motion for mistrial was thereupon made, because the last statement of Mr. Royal was claimed to be prejudicial and made for the purpose of misleading and prejudicing the jury; it being contended that the statement of counsel made in the presence of the defendant was prejudicial to the rights of the defendant because the witness Brannon was the scrivener of the deed from the plaintiff to the defendant, the subject-matter of the litigation, and the effect of such statement was to convey to the jury the impression that such deed was believed to be infected with infirmity and not a valid instrument, and the statement was surreptitiously made by counsel in order to convey prejudicial matter to the jury. In this ground, it is further contended that this error was magnified later on in cross-examination of the witness Brannon, when counsel for the plaintiff asked the witness if he did say anything regarding the deed to Pethel, and the witness answered that he had a conversation with Pethel, "but I would consider it confidential between attorney and client."

This court, in Woodward v. State, 197 Ga. 60 ( 28 S.E.2d 480), said that there are two kinds of improper statements made by counsel in the presence of the jury: one that could be corrected by action of the judge, and another where the statement is so inflammatory and prejudicial that its effect can not be eradicated from the minds of the jurors. In that case, where the defendant was on trial for murder, evidence had been introduced to the effect that the homicide took place near a certain room in a hotel. Shortly before the time of the homicide loud talking had been heard in that room. A police officer testified that some time later during the night of the homicide he and another police officer waited near the room to apprehend the person who occupied the room when he returned, and that a man by the name of Holzman entered the door and was arrested by the officers. At this point, counsel for the accused objected to the testimony, and the assistant solicitor-general gave his reasons why the court should admit the testimony; and when the court inquired of counsel as to the extent he wished to go in questioning the witness, he stated: "I want to show that they arrested him and carried him down, and he was released on a hundred-dollar bond the next day." Counsel for the accused made a motion for a mistrial, and this court held that the trial judge properly overruled the motion. In the opinion it was said: "There was nothing prejudicial to the accused in the statement made to the court by the assistant solicitor-general. The court rejected the proposed evidence. It was nothing more than a reply to a question by the court as to the extent of the proposed testimony he wanted to produce. The colloquy was between court and counsel, limited to the subject-matter of the admissibility of evidence, and while the evidence was rejected, the statement of the assistant solicitor-general was not inflammable, or injurious to the accused." P. 66.

From the record it appears that counsel for the plaintiff sought on cross-examination of the witness to ascertain whether he had a conversation with a person by the name of Pethel, and on objection of counsel for the defendant a colloquy took place between counsel for the plaintiff and the court. The court, in seeking to ascertain the reason why counsel thought the evidence was admissible, brought from counsel the statement, "We contend that he told Mr. Pethel that the deed was not worth a nickel." The chief ground upon which the defendant contends that the court erred in not declaring a mistrial is that the effect of the statement of counsel quoted above was to convey to the jury trying the case the impression that said deed was believed by the scrivener to be infected with such infirmity as not to be a valid instrument. We hold that the court did not err in overruling this ground of the motion for a new trial. The objection to the remark of counsel for the defendant took place in a colloquy between the court and counsel. The court refused to allow the witness to answer whether he had a conversation with Pethel. The statement by counsel for the plaintiff, that "We contend he told some third person that the deed to Pethel was not worth a nickel," was not a statement of fact or an assertion that, if the witness was allowed to go into the conversation, he, the witness, would state that he made such a statement as contended. We cannot say that the defendant was prejudiced or hurt thereby.

3. Ground 5 complains that the court erred in giving the following charge to the jury: "As a general rule, the injured party must return or offer to return the consideration received for the contract. And that is true in this case, gentlemen, unless you believe, by a preponderance of the evidence, that the plaintiff was unable through poverty or other reason, to restore to the defendant the benefit she received prior to the time of filing her petition."

It is asserted that the charge was erroneous and not sound as an abstract principle of law; that it was confusing and misleading, in that the jury, by the use of the words "or other reason," were not given any definite limitation of what might be considered a reason sufficient in law to excuse a tender, and left the jury to apply their own standard of what might be a sufficient excuse for not making a tender.

The use of the words "or other reason" by the court, after instructing the jury that the plaintiff was required to return or offer to return the consideration received under the contract unless they believed by a preponderance of the evidence that through poverty she was unable to do so, while inapt, and not justified under the pleadings, was not such error as demands the grant of a new trial. The evidence disclosed that, in the transaction between the plaintiff and the defendant concerning the conveyance of the property, the plaintiff did not receive directly from the defendant any benefit or consideration at the time the conveyance was made, and that whatever benefits she received from the defendant were services rendered by the defendant, or monetary advances by the defendant, after the deed was made. The deed recited a cash consideration, but the only money that the plaintiff received was $3000, which the defendant obtained from the proceeds of a loan on the property that the plaintiff had conveyed to him, and this money had been loaned by Gilstrap by virtue of a security deed executed by the defendant to Gilstrap, which, if the plaintiff's contentions were correct, was in equity and good conscience the property of the plaintiff. The evidence further shows that the defendant had obtained $1000 from Pethel by virtue of a second loan deed the defendant had executed to Pethel conveying the same property. Under the evidence introduced by the defendant, the jury would have been authorized to find that the defendant, either by reason of services rendered, payment of bills, or advancements of money, was entitled to a return of several hundred dollars in money, and by their verdict they allowed the defendant a credit of $500 in this regard, and by decree of the court title to the property was vested in the plaintiff, subject to both the loan deeds which the defendant had executed to third parties. The jury thereby did not excuse the plaintiff from making restoration by reason of her poverty, "or other reason." The error in the charge, if any, was harmless to the defendant.

4. On the general grounds of the motion for a new trial, counsel for the defendant insist that (a) the plaintiff failed to prove her case as laid; and (b) the evidence showed a valid sale of the property by the plaintiff to the defendant. We have set out substantially the evidence in the statement of facts, and will not repeat it here. We have carefully read and reread the evidence in the record, and cannot say that there is not some evidence to support the verdict. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict ( Stephenson v. Meeks, 141 Ga. 561 (4), 81 S.E. 851), or the verdict is supported by only slight evidence ( Ala. Great So. R. Co. v. Brock, 141 Ga. 840 (2), 82 S.E. 225), or the evidence is conflicting or preponderates against the verdict ( Slaton v. Fowler, 124 Ga. 955 (1), 53 S.E. 567), where no material error of law appears, this court will not disturb the trial judge's judgment in overruling the motion for new trial. As was said in Lavender v. Kurn, 327 U.S. 645, 653 ( 66 Sup. Ct. 740, 90 L. ed. 916): "It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable."

The jury, sitting as triors of the facts, hold the scales that determine the weight of the evidence, and in making such determination they pass on the credibility of the witnesses and adjust conflicts in the testimony, and resolve doubts, and thereby determine which side of the scales, that of the plaintiff or that of the defendant, has the greater weight or preponderance. They are the chemists who distill the facts in order to find the truth. In reviewing their findings, we are not permitted, as judges, to substitute what our judgment might have been if we had participated as jurors trying the case, where all we have before us is the stenographic report of the trial, and nothing of the warm human drama of the actual trial. The system of trial by jury where disputed legal rights of human beings are settled by the verdict of twelve men, chosen from a list of upright and intelligent men from the vicinage of the parties to the controversy, has been proven by its use over the centuries as the best method in arriving at human justice.

Counsel for the defendant insist that the rulings of this court in Grice v. Grice, 197 Ga. 686 ( 30 S.E.2d 183), are controlling here. We have examined that decision, which was not by a full bench, and find that the facts therein were quite different from those in the case at bar. In that case, the plaintiff sought to cancel a deed to the defendant on the ground that the defendant had fraudulently represented to the plaintiff that the bank would not make a loan to a woman in the health the plaintiff was then in, and under a promise that when the loan was obtained the defendant would reconvey said property to the petitioner, and upon the additional theory that the deed was void for the reason that no consideration was paid. In holding that the count of the petition which contained these allegations was not sufficiently proven to authorize a verdict for the plaintiff on that count of the petition, this court pointed out that the plaintiff did not rely on the promise to convey as a contractual obligation, because she did not pray either for specific performance or for general relief, and that the verdict on that behalf could only be sustained by evidence that the original defendant had fraudulently represented that the bank would not make a loan to a woman in the health petitioner was then in. It was held that there was no evidence in the record to show that such statement was false. In that case, it distinctly appeared that the plaintiff was fully cognizant of the type and character of the deed she executed, and it does not appear that the defendants or either of them occupied a confidential relationship of principal and agent. In the case at bar, there is evidence that the plaintiff, at the time she executed the deed, did so for the sole purpose of obtaining money to pay off a prior loan deed, and the jury were authorized to find that the deed was made to the defendant, not by reason of a sale, gift, or upon consideration of the defendant supporting the plaintiff in the future.

Finding no substantial error of law in the record, the order of the trial judge overruling the motion for a new trial as amended is affirmed.

Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents.