Pollock v. Skelton

ON MOTION TOR REHEARING.

Bussell-, C. J.

After a very careful consideration of the motion for rehearing the court is constrained to deny it. It is evidently predicated upon a misapprehension, either of the record or of the previous decisions of this court. The case is so fully covered by the opinion of Judge Wade, in behalf of the court, that we refer only to one phase thereof. Counsel for the plaintiffs in error insist .that this court has decided the ease upon an issue not made in the lower court, and conclude by saying that “if the court is of the opinion that the question of the contract being void, because *12procured by fraudulent representations, is properly in the case, then the case should be returned to the lower court, in order that this issue may be submitted to and decided by the jury, under proper instructions as to the law governing such questions.” As already pointed out by Judge Wade, the case before us is, in effect, a simple suit upon a note (though based on a prior attachment), and not an action based upon the contract to which the defendants’ plea referred. The contract was attached to the defendants’ answer, as an exhibit explanatory of the alleged fraudulent conduct of the plaintiffs in the procurement of the note. The answer contains sufficient allegations of fraud, though it is not denominated eo nomine, and hence the trial court was clearly right in admitting evidence touching the consideration of the note. The consideration of a note may always be inquired into. If, to secure a contract conceived in fraud, and for no other purpose, the defendants were induced to sign the note, and so, by reason of the fraud, the defendants received no consideration, that fact could be shown—as it appears to us it was shown—to the satisfaction of the jury.

We bear in mind that one who has been fraudulently induced to enter into a contract must either affirm, or disaffirm and offer to rescind, upon discovery of the fraud, but the answer of the defendants in this ease amounted to a declaration of their acceptance of the contract, with a demand for damages. If the testimony of the defendants as to agency wás credited by the jury, the damages, of course, would be the difference between the amount actually paid •for the property by Pollock and Smith as the defendants’ agents, and the amount which Pollock and Smith falsely and fraudulently reported to Skelton they had paid.

The insistence of counsel that our decision was based upon an issue foreign to the case appears to be based upon the fact that the trial judge, in his instructions to the jury, made no reference to the contract being void, and did not charge in reference to fraudulent representations, or fraud in the procurement of the contract, or instruct the jury what fraud would void the contract. Without referring to the charge of the court, and conceding the fact upon which this contention rests to be correctly stated, it would in no sense affect the ruling here. The case and the issues are formed by the pleadings, and depend for their support upon the evidence adduced. If, upon the issues thus presented, the evidence authorized *13the conclusion reached by the jury, it becomes entirely immaterial what instructions were given or omitted by the trial judge, unless such instructions or the failure to give instructions can reasonably be said to have contributed to a result which ought not to have been reached. “The validity of a verdict is to be tested by the law as it is written, and not by the law as it is given in charge.” Spence v. State, 7 Ga. App. 825 (68 S. E. 443). “If the result reached by the jury would have been the correct conclusion of the case had the judge ruled or charged in accordance with the contentions of one of the parties to the ease, the verdict will not be set aside merely because the judge erroneously . . . omitted to give in charge to the jury a principle which should appropriately have been included within his instructions. In other words, if the result reached would have been the same had the court ruled properly, and if the jury found rightly in spite of judicial error, the finding will not be set aside in order that the same result may be reached by a proceeding free from legal error.” Birmingham Fertilizer Co. v. Dozier, 13 Ga. App. 760 (79 S. E. 927). See also Young v. State, 10 Ga. App. 116 (72 S. E. 935); Register v. State, 10 Ga. App. 633 (74 S. E. 429); Jones v. State, 12 Ga. App. 135 (76 S. E. 1070). The contract in this case is merely collaterally involved; the suit was upon a note; the validity of the consideration was subject to parol proof; and certainly, therefore, it was-admissible for the defendants to refer to the contract which was in a sense ancillary to the parol evidence of fraud, in pointing out how the note was without consideration.

Reheating denied.

Roan, J., absent.