1. Where the pleadings in a suit for cancellation of a deed for fraud raised an issue as to tender, the plaintiffs can not 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 *Page 300 did not err in refusing to allow the defendant to be cross-examination 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.
No. 14359. JANUARY 14, 1943. 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. *Page 301 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 $1500; 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. 1. The first special ground of the motion for new trial complains because the court failed to charge the jury on the subject of tender. The petitioners alleged that they had made a tender to the defendant of the amounts which he had expended on the property in question. In his answer the defendant denied this allegation. On the trial the petitioners introduced evidence to prove the tender as alleged, and this proof was not controverted by the defendant. We do not think that the plaintiffs may complain of such omission to charge on tender, under these circumstances. As a condition precedent to their right to equitable relief, it was necessary that the petitioners prove a tender. But the charge, assuming as it did that the tender had been proved without controversy, was favorable to the plaintiffs, and they may not complain. There is no merit in the contention that the failure to charge on tender caused the jury to believe that if they by their verdict found for the plaintiffs, the defendant would lose the money which he had expended on the property.
2. Error is assigned on the following except from the charge: "I charge you that you would not be authorized to presume fraud. Fraud must be proved, and the burden of proving it is upon the plaintiff, and that must be proved by a preponderance of the evidence. But fraud being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence." The movants contend that this charge had the effect of limiting the jury, in their consideration of the question of fraud, to those acts of fraud which were proved by direct and positive testimony, and ruled out all circumstantial evidence. Apparently this contention is based upon the fact that the jury were instructed that they were not authorized to presume fraud. In the Code, § 37-706, it is declared: "Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence." Charges in the language of this section have been held proper. Hoffer v. Gladden, 75 Ga. 532 (2); Kay v. Benson, 152 Ga. 185 (2) (108 S.E. 779). The charge complained of states the substance of this section in a clear and concise manner, and is not subject to the objection urged. Movants rely strongly upon the case of Causey v.Wiley, 27 Ga. 444 (4), to support their contention that the charge was error. There it was held that a charge to the jury that "fraud is not to be presumed, but must be proved *Page 303 by those alleging it," unexplained, is not a legal charge in a case in which there is evidence of facts and circumstances tending to prove fraud. It was pointed out in the decision that the error in the charge arose because it was so expressed as to give the jury the impression that the judge was of the opinion that there was no evidence of facts and circumstances tending to prove fraud, and not because it contained an erroneous statement of law. In the case at bar the charge under attack followed an extensive charge on the subject of fraud as applied to this case, and it was followed by a clear charge presenting the issue of fraud as raised by the evidence. It can not be said that the excerpt complained of had the effect of misleading the jury in the present case.
3. Ground 3 assigns error on the following portion of the charge: "You are made by law the exclusive judges as to the credibility of the witnesses. In passing upon their credibility you may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their interest or want of interest, their bias or prejudice, if any exist, their means and opportunity for knowing the facts to which they testify, and the probability or improbability of their testimony, and of the occurrences to which they testify, and also their personal credibility so far as the same may legitimately appear to you from the trial of the case." There is no merit in the contentions that it was error because the jury were instructed that they might consider "all the facts and circumstances of the case" in passing upon the credibility of witnesses, and that it confused the preponderance of evidence rule with the credibility of witness rule. See Code, § 38-1805;White v. State, 147 Ga. 377 (94 S.E. 222).
4. The court did not err, as contended in ground 4, after having given in charge the rules with reference to the credibility of witnesses, in giving the following charge: "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." Code, § 38-1805.
5. Ground 5 assigns error because the court refused to allow the plaintiffs' counsel to question the defendant, on cross-examination, with reference to a similar transaction had by the defendant with a named third person. The evidence sought to be adduced was clearly inadmissible. Smith v. Adair, 61 Ga. 281 (2); *Page 304 Merchants National Bank of Rome v. Greenwood, 113 Ga. 306 (38 S.E. 826). The judge did not abuse his discretion in restraining counsel from proceeding along this line of cross-examination. See Clifton v. State, 187 Ga. 502, 508 (2 S.E.2d 102).
6. In the last ground error is assigned because the court refused to allow a witness for the plaintiffs to testify as to a conversation which she had had with Mrs. Peck, the wife of the defendant, in which Mrs. Peck made statements contradictory to her testimony upon the trial. It does not appear that a foundation for this evidence was laid, as provided for in the Code, § 38-1803; and therefore it was not admissible for the purpose of impeaching Mrs. Peck. It was not otherwise admissible because it was hearsay.
7. The evidence was in direct conflict on the issue of fraud; and the jury were authorized to find that the defendant was not guilty of fraud in the procurement of the warranty deed to the land in question. The general grounds of the motion are therefore without merit.
Judgment affirmed. All the Justices concur.