Quinton v. Peck
| Decision Date | 14 January 1943 |
| Docket Number | 14359. |
| Citation | 24 S.E.2d 36,195 Ga. 299 |
| Parties | QUINTON et ux. v. PECK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the pleadings in a suit for cancellation of a deed for fraud raised an issue as to tender, the plaintiffs cannot complain because the judge assumed tender to have been proved, and did not present to the jury the question of tender as one of the issues in the case.
2. The charge on fraud, containing the substance of the Code, § 37-706, was not subject to the objection that it withdrew from the consideration of the jury all circumstantial evidence, or that it intimated an opinion of the judge that there was no evidence in the case of facts and circumstances tending to prove fraud.
3. The court properly charged the jury that they might consider among other things, 'all the facts and circumstances of the case' in passing upon the credibility of the witnesses. The charge on the subject of the credibility of witnesses was not subject to the criticism that it was confused with the preponderance of evidence rule.
4. The judge did not err in concluding his charge on the credibility of witnesses as follows: 'But the jury, as stated, are at last the sole and exclusive judges as to what witness, or witnesses they will believe or disbelieve and what testimony they will credit or discredit.'
5. The judge may properly restrict the cross-examination of a witness to matters relevant to the issue on trial. In the instant case the judge did not err in refusing to allow the defendant to be cross-examined with reference to a similar but different transaction had by the defendant with a named third person.
6. Where it is sought to introduce evidence of statements made by a witness in a conversation, for the purpose of impeaching the witness, a proper foundation must first be laid.
7. The evidence authorized the verdict for the defendant on the issue of fraud. The court did not err in overruling the motion for new trial.
R. Q Quinton and his wife, Daisy Quinton, filed suit against A. W Peck, to obtain cancellation of a warranty deed which they alleged the defendant had obtained from them by fraud. They alleged that in 1933 they purchased and obtained a warranty deed to described land in the Town of New England, Dade County, Georgia, from the Wills Valley Coal and Iron Company, for the sum of $630.50; that they paid $156.50 in cash and gave five promissory notes for $94.80 each for the balance of the purchase-price; that the payment of the notes, which bore interest at the rate of six per cent., and one of which matured on each of the five succeeding years, was secured by a security deed to the described land; that the Wills Valley Coal and Iron Company thereafter conveyed the notes and security deed to the Miller Investment Company; that, due to a long siege of illness in the family, the petitioners were unable to pay the principal and interest on the indebtedness as it became due, but made some interest payments and arranged satisfactory extension agreements; that this was the status of the loan when, on or about November 6, 1940, the defendant advised them that one Dave Brown was going to the Miller Investment Company and take up their notes, and that he would foreclose the security deed and sell them out; that the defendant repeatedly reminded them of what he said Dave Brown intended to do, and told them that they had better do something about the indebtedness; that, due to this continuous nagging, the petitioners became worried about the matter and asked the defendant what to do to protect their property; that the defendant informed them that he would be glad to pay off the Miller Investment Company and refinance the indebtedness by taking a security deed to the land and new notes 'just like the Miller Investment Company's notes;' and that the petitioners agreed to the defendant's proposition. The petition then stated in detail the procedure by which it was charged that the defendant led the petitioners, who could not read or write, into signing the papers which the defendant had prepared in connection with the transaction, thinking and being told by the defendant that they were signing a security deed and other papers in connection with the refinancing of the loan in accordance with their agreement. These papers were executed on November 6, 1940. The petitioners alleged that in August, 1941, they learned that they had made their marks to a warranty deed, and not a security deed, and that they then learned for the first time that a paper which the defendant had given them at the time of the transaction was an option to repurchase the land within six months from that date, which option had expired when they learned of its existence. They alleged that the land was worth $1,500; that the defendant paid the Miller Investment Company $585.48, and had also paid taxes of $30.75 on the land; that through their attorney they tendered the defendant the amounts which he had expended on the land together with interest, but he had refused to accept the same; and that they were tendering the money into court as a continuing tender. They prayed for cancellation of the warranty deed and the option agreement; that the defendant be required to accept the tender; that he be enjoined from evicting them from the property in dispute or otherwise interfering with their possession; and for general relief.
In his answer the defendant denied the allegations of fraud with reference to the procurement of the warranty deed, and alleged that he purchased the property from the petitioners in good faith at their instance and request; that they signed the warranty deed with full knowledge of its contents; that he gave the option agreement, which provided for a ten per cent. profit to him, in order to allow the petitioners an opportunity to sell the property to some one else for a larger amount, if they were able to do so. He denied that a tender had been made to him.
On the trial the petitioners and the defendant introduced evidence to support their respective contentions with reference to the warranty deed. The jury returned a verdict for the defendant. A motion for new trial was overruled, and the petitioners excepted.
Gleason & Collins, of Rossville, for plaintiffs in error.
J. M....
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