Manget-Branon Co. v. White Crown Fruit Jar Co.

• Decision Date: 18 June 1917
• Docket Number: 8136.
• Citation: 93 S.E. 307,20 Ga.App. 339
• Parties: MANGET-BRANNON CO. v. WHITE CROWN FRUIT JAR CO.
• Court: Georgia Court of Appeals

93 S.E. 307

20 Ga.App. 339

MANGET-BRANNON CO. v. WHITE CROWN FRUIT JAR CO.

No. 8136.

Court of Appeals of Georgia, Second Division

June 18, 1917

Syllabus by the Court.

While the presumptions are in favor of the validity of verdicts and they are to have a reasonable intendment, so as not to be avoided save from necessity, and while in any case the test of certainty is whether the verdict can be made certain by what it contains or by the record, still the judgment entered thereon must follow the true meaning and intent of the finding; and where the judgment fails to do this, and it is not possible to frame a judgment both in accordance with the true intent of the verdict and with the issues made by the pleadings, the verdict must be set aside and a new trial ordered.

Error from Superior Court, Coweta County; R. W. Freeman, Judge.

Action by the White Crown Fruit Jar Company against the Manget-Brannon Company. Judgment for plaintiff, and defendant brings error. Reversed.

W. C Wright and W. G. Post, both of Newman, for plaintiff in error, cited: McCrary v. Gano, 115 Ga. 295, 41 S.E 580; Smith v. Pilcher, 130 Ga. 350, 60 S.E. 1000.

Hall & Jones, of Newman, for defendant in error: The construction of verdicts is a matter for the court. Thompson v Turner, 69 Ga. 219. A verdict is certain which can be made certain by what itself contains and by the record. Giles v. Spinks, 64 Ga. 205 (3); Jackson v. Jackson, 47 Ga. 99 (1); Harvey v. Head, 68 Ga. 247 (1); Steed v. Cruise, 70 Ga. 169 (9a); Central of Ga. Ry. Co. v. Mote, 131 Ga. 166, 62 S.E. 164 (2); Telfair County v. Clements, 1 Ga.App. 437, 57 S.E. 1059 (2); Smith v. Hightower, 3 Ga.App. 197-199, 59 S.E. 593 (4); Tifton Ry. Co. v. Butler, 4 Ga.App. 191, 60 S.E. 1087 (2a, b); Geer v. Thompson, 4 Ga.App. 756, 62 S.E. 500 (3); Harper v. Vickers, 7 Ga.App. 373, 374, 66 S.E. 990; Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga.App. 390, 73 S.E. 522; Davis v. Preston, 12 Ga.App. 65, 76 S.E. 766 (2). Verdicts should receive a reasonable construction, and are not to be avoided unless from necessity. Civil Code 1910,§ 5927. The test of sufficiency of a verdict is whether it is so certain that the court can give a legal judgment upon it. Seifert v. Holt, 82 Ga. 757, 9 S.E. 843 (2); Atlantic & Birmingham Ry. Co. v. Brown, 129 Ga. 622, 59 S.E. 278 (4); Cothran v. Donaldson, 49 Ga. 458 (2); Williams v. Brown, 57 Ga. 304 (4); Mayor of Macon v. Harris, 75 Ga. 762 (10); Hardin v. Johnston, 58 Ga. 522 (1); 29 Am. & Eng. Enc. of Law, 1025. Where a jury attempts to award costs, that part of the verdict will be rejected as surplusage and will not affect the other part. Southern Ry. Co. v. Oliver, 1 Ga.App. 734, 58 S.E. 244 (6); Hudson v. Hawkins, 79 Ga. 274, 4 S.E. 682 (4); North & South Street R. Co. v. Crayton, 86 Ga. 499, 12 S.E. 877; Southern Express Co. v. Maddox, 3 Ga.App. 223, 59 S.E. 821 (2); 22 Enc. Pl. & Pr. 862 et seq.; 38 Cyc. 1877, 1878, 1884, 1885, 1890, 1896. The jury found against the tender as pleaded by the defendant. A tender of less than is due is no tender. Hiller v. Howell, 74 Ga. 174; Smith v. Pilcher, 130 Ga. 355, 60 S.E. 1000.

JENKINS, J. (after stating the facts as above).

If the jury had simply found for the defendant under the pleadings the effect of the verdict would have been a rescission of the contract, and under it a judgment would have been entered accordingly, with recovery for the plaintiff in the amount of the tender and of the articles so offered to be returned. The gist of the tender as pleaded was the offered return of the unused portion of the articles received, together with the equivalent in value of such as had been disposed of prior to the ascertainment of the alleged fraud. It appears to us that the jury manifestly undertook to find in favor of the rescission asked and for the tender pleaded, except that it appears to have found that the amount of money tendered did not represent the contract price of all the articles disposed of, and that consequently a corresponding portion of the articles embraced in the tender were not subject thereto. But while the verdict appears to have been in favor of the rescission, and attempted to enforce the tender as in substance made, still the finding cannot be said even in substance to have...