Opinion
29614, 29615.
DECIDED NOVEMBER 27, 1942. ON REHEARING, DECEMBER 19, 1942.
Complaint on note; from Fulton civil court — Judge Carpenter. March 9, 1942.
Houston White, for plaintiff. Paul Ginsberg, Brandon, Tindall, Matthews Smith, for defendants.
The evidence sustained the verdict.
DECIDED NOVEMBER 27, 1942. ON REHEARING, DECEMBER 19, 1942.
The Morris Plan Bank brought suit against J. B. Ashley and E. M. Baggarly on a promissory note. The defendants answered denying indebtedness. The plaintiff amended its petition to the effect that the defendants had threatened to file a petition in bankruptcy in the event a judgment was obtained on the note sued on; that the original liability of $1800 to the plaintiff and the $1200 liability declared on resulted from false representations within the meaning of § 17 (2) of the bankruptcy act (11 U.S.C.A. § 35) and that the debt was not dischargeable in bankruptcy. The amendments to the petition were for the purpose of obtaining a judgment which would not be dischargeable under the bankruptcy act, in the event the defendants subsequently filed a petition in bankruptcy. The amendments were allowed subject to demurrer. The defendants filed a demurrer to the amendments on the ground that the original suit was based on the breach of the specific terms of an express contract, and the amendments sought to convert the suit into an action for tort based on fraud and deceit. The court overruled the demurrer. Exceptions pendente lite were filed. At the conclusion of the testimony the court directed the following verdict: "We the jury find for the plaintiff against the defendants jointly and severally, in the sum of $1200 principal with interest from the date of judgment at 8 per cent, per annum. We find against the plaintiff on the issue of fraud and false representations made by the amendments." A motion for new trial was filed by the plaintiff. This motion was overruled and the plaintiff excepted. A cross-bill of exceptions was filed excepting to the judgment overruling the demurrer to the amendments to the petition.
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. Cross-bill dismissed. MacIntyre and Gardner, JJ., concur. Broyles, C. J., dissents.