Livingston v. Barnett, 13977.

• Court: Supreme Court of Georgia
• Writing for the Court: BELL, Justice
• Citation: 19 S.E.2d 385
• Parties: LIVINGSTON. v. BARNETT.
• Docket Number: No. 13977.,13977.
• Decision Date: 13 February 1942

19 S.E.2d 385

LIVINGSTON.
v.
BARNETT.

No. 13977.

Supreme Court of Georgia.

Feb. 13, 1942.

[19 S.E.2d 386]Syllabus by the Court.

1. A demurrer to an original petition does not, without more, cover the petition after it has been amended in material respects; but in such case the demurrer should be renewed if it is still relied on.

(a) While the defendant did renew her original demurrer as well as file an entirely new demurrer attacking the petition as amended, she excepted only to the order overruling her original demurrer, and the subsequent rulings, not having been challenged in any manner, became the final law of the case as related to the demurrers. In the circumstances, the exceptions to the original order present only a moot question, and will not be decided.

2. Where evidence tends to support the allegations of a petition, its admissibility may not be questioned by an objection that the petition does not state a cause of action, or that the evidence would not establish a right to recover.

3. In a suit by the grantee to cancel a deed to land, where one of the issues for determination related to the plaintiff's mental condition, testimony of a non-expert witness that he had known the plaintiff for about thirty years, and that about the time of the transaction the plaintiff "was not normal, he was not what he had been, " was subject to objection as a mere conclusion of the witness, long acquaintance being the only fact given as basis therefor, and this alone being insufficient for the purpose.

(a) The mere circumstance, however, that certain evidence may within itself fall short of proving a fact which the party offering it seeks to establish is not a sufficient reason for excluding it Unless otherwise objectionable, it should be admitted, even though it may only tend to prove the matter in issue.

(b) Accordingly, testimony relating to the conduct, appearance, and statements of the plaintiff, and tending to show subnormal mental capacity, as alleged in the petition, was properly admitted over objections that it was insufficient for the purpose for which it was offered, did not show incapacity to contract, and was irrelevant.

4. Any representation, act, or artifice intended to deceive, and which does deceive another, is such a fraud as may authorize cancellation of a written contract; but a party to a contract who can read must read or show a legal excuse for not doing so; and ordinarily, if fraud is the excuse, it must be such fraud as prevents the party from reading. Nor in such case will a mere fraudulent statement by the opposite party or his agent as to the contents of the writing furnish a legal excuse; and where the contract is a deed to land, the rule will generally apply to the grantee as well as the grantor.

(a) In the instant case, some parts of the judge's charge to the jury were inconsistent with the foregoing principles, and were apparently harmful to the defendant, the losing party in the trial court.

5. There being no evidence of mutual mistake as to the contents of the deed, the portion of the charge relating to rescission for mutual mistake was erroneous, as contended, in that it submitted a theory not supported by the evidence.

6. The charge on reformation for mutual mistake was likewise erroneous as unwarranted by the evidence; but the error might have been harmless, as the jury made no finding on the prayer for reformation.

7. It is declared in the Code, § 37-710, that "Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract." A charge evidently based on this principle, but not in the exact language of the Code, was not erroneous for any reason assigned. There was no exception on the ground that the language employed was not the equivalent of that contained in the Code.

(a) For the reasons stated in notes 4 and 5 above and the corresponding divisions of the opinion, as applied to the defendant's motion for a new trial, it was error to overrule the motion.

Error from Superior Court, Baker County; Carl E. Crow, Judge.

Suit by R. A. Barnett against Mrs. Emma Hudspeth Livingston for rescission of a

[19 S.E.2d 387]

contract for the sale of land and other relief. To review an adverse judgment, defendant brings error.

Reversed.

On November 9, 1939, R. A. Barnett accepted a deed signed by Mrs. Emma Hudspeth Livingston, purporting to convey to him described land in consideration of $2,500 paid, the description referring to two tracts in lot 172 and one tract in lot 195, in the 8th district of Baker County, aggregating about 125 acres. In describing one tract, there was excepted "what is known as the Mrs. Emma Livingston home lot, " and following a description of all the land was this statement: "It is the intention of the grantor herein to convey all of the lands she has title to off lots of land (172) one hundred and seventy-two and (195) one hundred and ninety-five in the eighth district of Baker County, Georgia, except such land as is contained in what is known as the Mrs. Emma Hudspeth Livingston home lot." Thirteen days afterwards, to wit, on November 22, 1939, Barnett filed against Mrs. Livingston a petition in equity, seeking rescission of the contract and recovery of the sum paid, the alleged grounds for such relief being: (1) fraudulent representations by an alleged agent of the defendant, as to the value of the land, especially for use in the live-stock business, and as to the desire of the alleged agent (Dan Miller) to form a partnership with the plaintiff for the use of the land in such business; (2) fraudulent insertion of the excepting clause in the deed of conveyance, the plaintiff having accepted the deed without reading it, on express assurance from such agent that it "was all right and in accordance with their agreement, " which agreement as actually made included "the home place"; and (3) great inadequacy of consideration, in that the land conveyed was of very small value, "not exceeding $500, " as compared with the amount paid, coupled with great mental disparity as between the plaintiff and such alleged agent, with whom it is averred the plaintiff dealt.

The defendant demurred generally and specially. The demurrer was overruled on all grounds, and the defendant excepted pendente lite. Thereafter the plaintiff amended by adding certain allegations to one paragraph, and by adding also a second count in which he sought to have the deed reformed by striking the except ing clause last above quoted. The defendant then renewed her demurrers, general and special, as theretofore filed, and they were again overruled. She also demurred generally and specially to the petition as amended, which demurrer was in like manner overruled on all grounds. The defendant took no exceptions to either of the two rulings last mentioned. The defendant filed answer denying all allegations of the original petition as to fraud, inadequacy of consideration, and mental disparity. Upon the trial the jury found a verdict in favor of the plaintiff "for a rescission of the contract"; whereupon the court entered a judgment decreeing such rescission, and recovery of the sum paid. There was no verdict on the second count. The defendant filed a motion for a new trial, which she later amended by adding twenty-seven grounds, nine of them assigning error on the admission of evidence, sixteen complaining of excerpts from the court's charge, and the remaining two containing exceptions to omissions to charge. The motion as thus amended was overruled, and the movant excepted. The original bill of exceptions complained only of the judgment refusing a new trial, but an amendment was offered, assigning error on the exceptions pendente lite as taken by the defendant to the overruling of her original demurrer.

The evidence tended to show that the land actually conveyed was not worth more than $500, this being the value alleged in the petition, and that "the home place" which was excepted was worth at least twice that amount. There was no evidence that any fraud was used to prevent the plaintiff from reading the deed before accepting it, unless the testimony of the plaintiff, admitted without objection, to the effect that his attorney read the petition to him and that "it is the truth, " should be considered as such evidence; nor was there any evidence of confidential relation.

The plaintiff's entire testimony was as follows: "Dan Miller called me around to his store and said, 'How about selling you that pasture lot?' * * * I went around there on * * * November 9, 1939. He said, 'How about me selling you this barn? It belongs to my wife, but I can get her to make the deed, ' and he said, 'I want us to go in the live stock business here, and I want to sell it to you.' I told him, 'Dan, I don't have any business with that, ' and he said, 'I know

[19 S.E.2d 388]

you have got the money and you need the barn, ' and I said, 'Dan, I don't need it, ' and he said that in 1938 he and Mrs. Hall and somebody went into business and made a thousand dollars a month; and I left and went up to the house and did not have any more conversation. He said, T want you to furnish the money and go in business, and we can make plenty of money.' He said, 'Alton, I want to go in business with you, ' and said, 'I can make plenty of money for you and me too;' and I said, 'Dan, you know I don't want to go in business with you, because I know that you will take everything if you get a chance;' and he said, 'We got along all right so far.' I believed his statement that he had made $3000 in three months. I bought it because I thought I could make some money. I intended going in business with Mr. Miller after purchasing the barn. The next morning Dan said, 'In going into this business; we need some grazing land.' Dan and I went on down to the barn, and Dan started telling me about what good pasture it was, and I said, 'I know, because my colts were...