Opinion
17214.
OCTOBER 10, 1950.
Cancellation, etc. Before Judge Pharr. Fulton Superior Court. May 17, 1950.
Clarence Bell and Noah J. Stone, for plaintiff in error.
Saul Blau, contra.
1. The petition set forth a cause of action and was not subject to general demurrer.
2. Where special demurrers to a petition pointed out the omission of various dates and the failure to allege whether a certain agreement was in writing or oral, and also sought to strike allegations which were for various reasons improperly contained in the petition, and where the court sustained the demurrers and allowed the plaintiff twenty days to amend in order to comply with the court's rulings thereon, or else the petition would stand dismissed, and where the plaintiff, within the time allowed, amended the petition and supplied the allegations as to dates and as to whether the contract was oral or in writing — this was a compliance with the court's order, as its effect was to eliminate the parts held bad. The failure of the plaintiff to specifically strike, by amendment, the parts held bad, did not subject the petition to dismissal, because, where a special demurrer attacks only certain parts of a petition, and is sustained, the result is to eliminate the parts so held bad. White v. Little, 139 Ga. 522 (3) ( 77 S.E. 646); Sutton v. Adams, 180 Ga. 48 (4) ( 178 S.E. 365); Cheatham v. Palmer, 191 Ga. 617 (5) ( 13 S.E.2d 674).
3. The trial judge did not err in his rulings on special demurrer.
4. The evidence was sufficient to authorize the verdict.
5-9. The trial judge did not err in overruling the grounds of the amended motion for new trial.
No. 17214. OCTOBER 10, 1950.
Mrs. Amy P. Clark brought an equitable petition against J. R. Flannagan to cancel certain notes and a security deed, and for a money judgment. A series of demurrers and amendments followed. The amended petition alleged substantially the following: In May, 1947, the defendant stated that he was the owner of a described tract of land in Fulton County, which he was using as a place to train and board horses and to hold horse shows for profit; that the property was zoned and being used for that purpose; and that he had contracts to board 150 horses at $50 per month and $75 per month where training was required; that the equipment was adequate except some partitions in the barn and the conversion of another barn to stable 60 horses to board and train, in addition to the 150 horses he had already contracted for. The defendant took the petitioner upon the premises and showed her the barns and horses, and pointed out where other stables, a clubhouse, and booth for selling tickets were to be erected. On June 7, 1947, pursuant to the solicitations and representations of the defendant, she entered into an oral agreement to purchase a one-half interest in the business, which included a half interest in the real property for the sum of $7596.15. She paid $3846.15 in cash. The defendant gave her a warranty deed for a one-half interest in the property, and she in turn gave the defendant a security deed thereto to secure the payment of $3750 evidenced by three promissory notes of $1250 each, payable one, two, and three years thereafter (June 7, 1947).
The plaintiff further alleged: Subsequently, on July 26, 1947, she learned that the horses which were on the premises and shown to her by the defendant were not horses that were being boarded and trained for others, but were horses of the defendant placed there to deceive her. She further discovered that the property was not zoned for boarding and training horses, had never been so used, and could not be applied to that purpose, which fact was known by the defendant when he acquired the property. Under the Fulton County Zoning Resolution adopted in June, 1946, the property and barns thereon were in use as a dairy and by the terms of the resolution, when they ceased to be used for that purpose, would be restricted to residential uses. There was no public notice or record as to the nature of the use of said property, nor could it have been discovered by ordinary diligence.
It was also alleged: When she learned of the misrepresentations of the defendant, the plaintiff demanded a return of the money paid to him and a surrender of the security deed and the three notes executed by her, and offered to reconvey the one-half interest in the property to him, but he stated that he would not accept such reconveyance if tendered to him. Thereafter, for several months and up to May, 1948, she contacted the defendant once every two weeks and he stated to her that he had no money, but was going to acquire the money and repay her. On May 18, 1948, she received notice from the defendant that the security deed executed by her would be foreclosed. She further alleged that the defendant was insolvent, and tendered into court a warranty deed reconveying the property to him.
The prayers were: (1) for process, (2) restraining the foreclosure of the security deed, (3) cancellation of the security deed and notes, (4) judgment for $3846.15, and (5) general relief.
The jury found for the plaintiff. The exceptions are: (1) to the overruling of a motion to strike the petition, by reason of the plaintiff's failure to comply fully with an order that the petition would stand dismissed unless amended within twenty days; (2) to the overruling of demurrers; and (3) to the overruling of an amended motion for new trial.
1-4. Headnotes 1 to 4 require no elaboration.
5. By the first ground of the amended motion, error is alleged on the following charge: "She prays the relief of the court, that the contract be rescinded, and that she recover of the defendant the sum of money she alleged she paid, and that the security deed and the notes given by her be canceled." The petition did not specifically pray that the contract be rescinded. It is asserted that so charging the jury was prejudicial to the defendant. She alleged and proved that she was induced to enter into the partnership contract by fraudulent representations; and she prayed for a judgment covering the amount of money which she paid, and for cancellation of the security deed and notes which she executed to cover the balance of the agreed price. Whether a verdict in her favor would automatically cancel the contract need not here be determined. But the mere fact that the court charged that she sought rescission of the contract could not have been prejudicial to the defendant. We are not here concerned with a question where the decree contains something not covered by the pleadings, as the decree here makes no reference to rescission of the contract.
6. The second ground of the amended motion complains of the following charge: "I charge you that suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case." The objection thereto was that there was no pleading or evidence to authorize it. We cannot concur in this contention, as there was evidence to authorize this charge as to suppression of facts.
7. Under the third ground of the amended motion exception is taken to the following charge: "That in order for the plaintiff to recover, she must show to your satisfaction, by a preponderance of the evidence, the following: 1. That the alleged contract was made; second, that Mr. Flannagan made to her the alleged misrepresentations as to existing facts or promises of future conduct which the promisor, Mr. Flannagan, at that time did not intend to perform." The objection thereto is that there was no pleading or evidence to authorize the charge as to future conduct. There was such evidence, and the ground is not meritorious.
8. Under the fourth and fifth grounds of the amended motion, error is assigned on the admission of testimony. The evidence showed that the deed and notes were delivered on June 7, 1947, that she learned the place could not be used for the purposed business on July 26, 1947, and that the suit was not filed until May 26, 1948. The plaintiff was asked the following question: "Would you tell what transpired between you and Mr. Flannagan, if anything, in regard to your not bringing suit?" Answer: "Mr. Flannagan asked me if I would have patience and wait for a few weeks that he would raise the money and return my money to me. . . He repeatedly told me each time I called him up, and I called him up on an average of once a week up until the period that I started this case. . . He said that he did not have the money, that as soon as he raised it he would give it to me if I would just have patience and wait awhile. That is the reason I did not bring the suit until the time I filed the petition." The objection was: "I object to that on the ground it would be an attempt to compromise, and under the Code section it is not admissible, it's incompetent, irrelevant, and harmful to the defendant. . . [Also] it is a self-serving declaration." This is neither a self-serving declaration, nor a proposition made with a view to compromise under Code § 38-408, but is evidence of an admission of liability. Teasley v. Bradley, 110 Ga. 497 (6) ( 35 S.E. 782); McBride v. Georgia Ry. Electric Co., 125 Ga. 515 (3) ( 54 S.E. 674); Hening Hagedorn v. Glanton, 27 Ga. App. 339 (2) ( 108 S.E. 256). The evidence was admissible to negative laches, under Code § 37-119, by explaining the reason for delay in not proceeding more promptly after the discovery of the misrepresentations. Benson v. May, 149 Ga. 555 (2) ( 101 S.E. 177); Jones v. Hogans, 197 Ga. 404 (3) ( 29 S.E.2d 568).
9. Exceptions to the charge of the court in ground six of the amended motion are without merit.
Judgment affirmed. All the Justices concur, except Almand, J., who is disqualified.