Briesenick v. Dimond, (No. 16984.)

• Decision Date: 04 August 1926
• Docket Number: (No. 16984.)
• Parties: BRIESENICK et al. v. DIMOND.
• Court: Georgia Court of Appeals

35 Ga.App. 668

134 S.E. 350

BRIESENICK et al.

v.DIMOND.

(No. 16984.)

Court of Appeals of Georgia,

Division No. 2.

Aug. 4, 1926.

(Syllabus by Editorial Staff.)

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 by the Court.

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 show 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 per-mitted 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. Brew-ton, 150 Ga. 37 (2), 102 S. E. 439; Towson v. Horn, 160 Ga. 697 (3), 128 S. E. 801; O'Don-nelly v. Stapler, 34 Ga. App. 637, 131 S. E. 91; Purney 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. Ed-dleman, 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 character and value of the prop erty, the measure of damages is the difference between the value of the property at the time of the sale and what its value would have been if the representations had been true. James v. Elliott, 44 Ga. 237; Smith v. Kirkpatrick, 79 Ga. 410 (3), 7 S. E. 258; Estes v. Odom, 91 Ga. 600 (5), 18 S. E. 355; Millirons v. Dillon, 100 Ga. 656 (2), 658, 28 S. E. 385; McCrary v. Pritchard, 119 Ga. 876 (7), 47 S. E. 341; Commercial City Bank v. Mitchell, 25 Ga. App. 837 (3a), 105 S. E. 57; De Ment v. Rogers, 24 Ga. App. 438 (1), 101 S. E. 197; George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456, and note; 27 C. J. 92, § 243, and citations; 4 Sutherland. Damages (4th Ed.) p. 4388.

7. While the court in the present case did not instruct the jury directly and explicitly as to the measure of damages, the effect of the charge as a whole was to tell the jury that, if the...