Briesenick v. Dimond

• Decision Date: 04 August 1926
• Docket Number: 16984.
• Citation: 134 S.E. 350,35 Ga.App. 668
• Parties: BRIESENICK et al v. DIMOND.
• Court: Georgia Court of Appeals

134 S.E. 350

35 Ga.App. 668

BRIESENICK et al v. DIMOND.

No. 16984.

Court of Appeals of Georgia, Second Division

August 4, 1926

Syllabus by Editorial Staff.

Ordinarily it is not error to state contentions of parties as made by pleadings.

Where evidence showed false and fraudulent representations of plaintiffs' agent as to suitability of land for farming induced defendant's purchase, it was not immaterial for what purpose it was bought and sold.

Charge considered as a whole, held not to allow finding for defendant, in absence of proof that representations were fraudulent and false, since court expressly instructed that if jury found to the contrary, defendant was not entitled to abatement in price.

Charge, submitting issue only as to land, held, when construed as a whole, not error, because it was contrary to assurance that judge would not submit question of abatement on account of timber of personalty.

Omission to charge that there could be no recovery for matter alleged on which there was no proof, without request therefor, is not reversible error.

Where unliquidated damages are recoverable, it is generally duty of court to charge as to measure thereof without request.

Failure to charge as to measure of unliquidated damages without request is not cause for new trial, where losing party was not harmed.

General charge on unliquidated damages is sufficient, in absence of request, where evidence discloses no element of special damages requiring more detailed instructions.

Measure of damages for vendor's fraudulent representations affecting value of land is difference between value at time of sale and value if representations had been true.

Charge that, if purchaser was damaged by vendor's fraud, measure of damages would be difference between price and actual value at time of sale, though incorrect, held not prejudicial to vendor, in view of his sole contention that property was as represented, and far in excess of price.

An erroneous charge on measure of damages may be cured by reasonableness of verdict.

Error from Superior Court, Glynn County; J. P. Highsmith, Judge.

Suit by R. E. Briesenick and others against J. H. E. Dimond. Judgment for defendant, for partial abatement in price of land, and plaintiffs bring error. Affirmed.

Conyers & Gowen, of Brunswick, for plaintiffs in error.

A. H. Crovatt and Krauss & Strong, all of Brunswick, for defendant in error.

Syllabus OPINION.

BELL J.

1. The evidence authorized the verdict in favor of the defendant. Briesenick v. Dimond, 33 Ga.App. 394 (2), 126 S.E. 306.

2. The court did not err in charging the jury as follows:

"The defendant contends that the property was purchased by him and was sold to him by the plaintiffs as farming property for farming purposes."

This was a correct statement of one of the defendant's contentions as made in his answer; and, ordinarily, it is not error to state the contentions of the parties as made by the pleadings. See White v. Knapp, 31 Ga.App. 344 (7a), 120 S.E. 796; Ga. Ry., etc., Co. v. Simms, 33 Ga.App. 535 (5), 126 S.E. 850; Matthews v. Seaboard, etc., Ry. Co., 17 Ga.App. 664, 87 S.E. 1097.

Furthermore, the evidence tended to shows that false and fraudulent representations were made by the plaintiffs' agent as to the suitability of the land for farming purposes, and that the defendant was induced thereby to make the purchase. It was, therefore, not "immaterial for what purpose the real property was bought and sold."

3. Considered as a whole, the court's charge did not allow the jury to find for the defendant in the absence of proof that the representations were fraudulent as well as false, the jury having been expressly instructed that-

If their "findings should not be that false and fraudulent representations were made to the defendant by the plaintiffs, then the defendant would not be entitled to an abatement in the purchase price, and in that case the plaintiffs would be entitled to recover the full amount sued for, principal, interest, and attorney's fees."

See Wilson v. Small, 28 Ga.App. 587, 592, 113 S.E. 238; City Council of Augusta v. Tharpe, 113 Ga. 152 (2), 38 S.E. 389.

Nor was the charge error because it permitted the jury to return a verdict in favor of the defendant without finding that the defendant relied, and had the right to rely, upon the representations.

4. When the charge is construed in its entirety, it appears that the court submitted the issue of fraud and damage only in relation to the land, exclusive of timber and of the personalty included in the sale. Hence the charge was not error upon the ground that it was contrary to an assurance given by the judge, in response to a motion of the plaintiffs' counsel to rule out certain testimony, "that he would not submit to the jury any question of abatement in behalf of the defendant on account" of the timber or of specified personalty.

"It is not error requiring a new trial that the court omitted to charge the jury there could be no recovery for a certain element of damages mentioned in the petition, on which there was no proof; no request to do so being made, and the judge in his charge restricting the jury in their investigation only to such damages as were covered by the evidence, and thus involved in the case." Henson v. Taylor, 108 Ga. 567 (5), 33 S.E. 911; Powell v. Augusta & Summerville Ry. Co., 77 Ga. 192 (12), 3 S.E. 757.

5. Where, under the pleadings and the evidence, unliquidated damages are recoverable, it is generally the duty of the court to charge the jury as to the measure thereof, whether requested to do so or not. Central of Ga. Ry. Co. v. Hughes, 127 Ga. 593, 56 S.E. 770; Central of Ga. Ry. Co. v. Madden, 135 Ga. 205 (7), 69 S.E. 165, 31 L.R.A. (N. S.) 813, 21 Ann.Cas. 1077; Atlanta, B. & A. R. Co. v. Barnwell, 138 Ga. 569 (5), 75 S.E. 645; Seaboard Air Line Ry. v. Brewton, 150 Ga. 37 (2), 102 S.E. 439; Towson v. Horn, 160 Ga. 697 (3), 128 S.E. 801; O'Donnelly v. Stapler, 34 Ga.App. 637, 131 S.E. 91; Furney v. Tower, 34 Ga.App. 739 (6), 131 S.E. 177 (6); Central Ga. Ry. Co. v. Hill, 21 Ga.App. 231 (4), 94 S.E. 50. But failure to give such instruction will not be cause for a new trial, where it appears that the losing party was not harmed thereby. Furr v. Eddleman, 80 Ga. 660 (2), 7 S.E. 167; Mayor, etc., of Griffin v. Johnson, 84 Ga. 279 (5), 282, 10 S.E. 719; Rome & Carrollton Construction Co. v. Jennings, 85 Ga. 444, 11 S.E. 839; Boswell v. Barnhart, 96 Ga. 521 (3), 23 S.E. 414; Southeastern Express Co. v. Chambers, 33 Ga.App. 44, 125 S.E. 507; Tallulah Falls R. Co. v. Stribling, 20 Ga.App. 353 (4), 93 S.E. 161. And a general charge upon the subject is sufficient, in the absence of request, where the evidence discloses no "elements of special damage of a kind to require more detailed instructions." Crown Cotton Mills v. McNally, 123 Ga. 35 (6), 51 S.E. 13.

6. Where a purchaser of land is damaged by reliance upon false and fraudulent representations of the vendor as to matters affecting the...