James v. Elliott

• Decision Date: 31 July 1871
• Citation: 44 Ga. 237
• Parties: LEE L. JAMES, plaintiff in error. v. EDWARD R. ELLIOTT, defendant in error.
• Court: Georgia Supreme Court

44 Ga. 237

LEE L. JAMES, plaintiff in error. v. EDWARD R. ELLIOTT, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, . July Term, 1871.)

Misrepresentation. Fraud. Damages. Recoupment. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.

Elliott sued James for the unpaid part of the purchase-money of certain land which he had sold to James. James' defense was that he told Elliott that he was buying said land solely to make brick, and for that purpose wanted a strip of clay land which Elliott said was part of the lot, and so believing, he took a bond for titles to the lot, went upon it, spent over $800 00 in hiring hands, etc., in preparing to make brick, and then found out that said strip of land was not a part of Elliott's land, and it was the only part fit for brick making, and immediately abandoned the premises, and offered to rescind the trade, but Elliott would not. All this he proved, and asked to recoup from his notes the amount so expended by him. He also offered evidence of a deficiency of land from the quantity represented. Elliott testified, denying the material parts of the defense toto coelo.

The Court ruled out all the evidence of the damages sustained by James in his preparation to make brick as well as evidence relating to the deficiency in the quantity of the land, and ruled that James was not entitled to any abatement or deduction from the notes in consequence of said expenditures. The jury found for Elliott for the full amount of the notes. Said rulings are assigned as error.

Robert Baugh, for plaintiff in error, cited I McCord's R.. 121; 3 Law Times, 61; 6 John R., 181; 2 Wend. R., 385; 18 John R., 403; 2 Head R., 445; 8 Allen's R., 560; 19 Iowa R., 162; Sedg. on Dam., 51, 8, 9, 559; R. Code, sees. 2906, 2907.

L. J. Glenn & Son, for defendant. LOCHRANE, Chief Justice.

Upon the trial of this case, the suit at common law and the bill in equity were tried together. It appeared that Lee L. James purchased from E. R. Elliott a city lot of four acres, in the city of Atlanta, paying a part cash and giving his notes for the balance. The suit at common law was instituted by Elliott against James for the balance of the purchase-money, and James filed his bill in which he alleges that he desired to purchase the lot for the purpose of establishing a brick yard, and that Elliott knew his intention in the premises. He charges that Elliott misrepresented the boundaries of the lot, representing a ridge upon the eastern side to be the boundary, which was nearly the whole of the lot, suited for making brick; that relying upon the boundaries as represented, he purchased the lot and took a bond for titles thereto. He further charges that his sole object in making the purchase was to establish a brick yard, and that he so informed him; that after the purchase, he employed hands, put up two small houses and a stable on the lot, and made other preparations for making brick; that he had two wagons and mules, etc., and, when he commenced levelling the lot and digging up the soil, he was informed the soil did not belong to, and was not embraced in the boundaries. He charges that he immediately notified Elliott that he had been deceived, etc., and was forced to abandon, etc. He charges that he was damaged by the deception practiced on him, $1,286 43. He prays an injunction restraining the suit; that the trade be rescinded, his notes delivered to him, and his cash payment refunded, with interest, and that he be decreed such damages as he may have sustained by the fraud practiced upon him, offering to deliver the bond to be canceled.

The defendant answered the bill, denying the charges made of the purposes of his purchase, and all fraud in thepremises. Evidence was introduced on both sides, and the *jury found for the plaintiff the amount of the notes. The Court below ruled out all the evidence of damages sustained by James in his preparations to make brick, as well as the evidence relating to the deficiency in the quantity of the land, and stated that James was not entitled to any abatement or deduction from the notes, in consequence of the expenses he had been at, or the damages he had sustained by Elliott, or the want of quantity under the evidence. Which ruling of the Court was excepted to and forms the ground of error assigned.

1. The question presented by the record is a purely legal one. Is a party entitled to set up damages by way of recoupment for fraud practiced upon him in the purchase of property? The law recognizes the right of the party to an action for...