Hamlin v. Johns

• Citation: 41 Ga.App. 91,151 S.E. 815
• Decision Date: 12 February 1930
• Docket Number: (No. 19878.)
• Parties: HAMLIN. v. JOHNS.
• Court: United States Court of Appeals (Georgia)

41 Ga.App. 91

151 S.E. 815

HAMLIN.

v.JOHNS.

(No. 19878.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 12, 1930.

(Syllabus by Editorial Staff.)

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by F. E. Johns against J. B. Hamlin. Judgment for plaintiff, and defendant brings error. Affirmed.

Statement of facts by Jenkins, P. J.:

In a former proceeding Mrs. Hamlin brought an equitable petition against Mrs. Johns by which she sought to rescind and have canceled certain promissory notes executed by her to the defendant for the purchase price of certain lands, alleging in her petition that the agent of the defendant in that case had, previous to the purchase of the land, pointed out to her certain valuable land as embraced in the tract about which negotiations were pending, which did not in fact belong thereto, and that she was induced to enter upon the contract of purchase by reason of such false representations. Actual and willful fraud on the part of such agent was not alleged. On the trial of the former proceeding a verdict was directed in favor of Mrs. Johns, the defendant; the temporary restraining order theretofore granted was dissolved, and no supersedeas staying the judgment was entered. This judgment was affirmed by the Supreme Court in Hamlin v. Johns, 166 Ga. 880, 144 S. E. 659, 661, in which it was held that, no exception having been taken to the direction of the verdict because there were questions of fact that should have been submitted to the jury, the case was dealt with as if the verdict had been found by the jury. In the opinion in that case it was said: "Under the pleadings and the evidence in this case, the jury would have been authorized to find that the agent of the defendant in pointing out the property did not knowingly make a false representation as to the identity of the property; also, that the plaintiff did not herself exercise ordinary care in ascertaining the truth as to the identity of the property that was sold; also, that after discovery of the mistake as to the identity of the property she did not move within a reasonable time to rescind. In the circumstances a verdict for the defendant was authorized by the evidence." After a motion for new trial had been made in the former case in the court below, and during the time within which exceptions could be taken, and in fact were thereafter taken, to the judgment overruling such motion, Mrs. Johns filed suit on the purchase-money notes. To this suit a plea in abatement was entered on the theory that the action was premature at the time it was instituted, because at that time the proceeding to rescind the contract and cancel the notes was still pending. On the trial of the issue made by the plea in abatement the judge directed a verdict against the plea, to which exceptions pendente lite were filed, and it is now insisted by counsel for Mrs. Hamlin that if the decision that the purchaser could not rescind is conclusive against her right to damages under her plea in the instant suit on the notes, then the suit for the purchase money was prematurely filed pending a final determination of the action to rescind. By her plea in the suit on the purchase-money notes, the defendant, Mrs. Hamlin, sets up an affirmative defense claiming damages to herself by reason of the alleged fraud perpetrated by Mrs. Johns' agent in procuring the contract of sale. Without alleging actual, willful fraud, she again sets forth that the agent pointed out a valuable tract of land as being embraced in the tract about which negotiations were pending, which did not in fact belong thereto, and that having no reason to doubt the correctness of such statement, she acted thereon to her injury. Whereupon the plaintiff, by amendment by way of replication, set up the pleadings in the former suit and the judgment rendered there-in as a bar to the defendant's claim for damages in the instant suit on the notes. The court overruled a demurrer to the amendment, and upon the trial directed a verdict in favor of the plaintiff for the amount sued for. In addition to her contention that the plaintiff in error is barred by the judgment in the former case, the defendant in error...