dissenting.
The holding of the majority, albeit inadvertent, gives financial institutions virtually a “blank check” to conspire to defraud innocent third parties who are engaged in business transactions with the bank’s friends and favored customers. I cannot join in this result.
I find the precedent relied upon in Division 1 of the majority’s opinion to be clearly distinguishable factually from the case sub judice. Therefore, while the legal principles espoused in those cases are not in question, the applicability of that body of law to the issues at hand is in great dispute.
It is well-established that “[questions of fraud, the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury.” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) and the seven cases therein cited. Moreover, “ ‘[w]hile a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could ascertain the falsity of the representations by proper diligence is for determination by the jury.’ ” Braselton Bros. v. Better Maid &c., 222 Ga. 472, 474 (150 SE2d 620). While under very limited circumstances the question of lack of due diligence may be decided as a matter of law, this decision is appropriate only when “the facts of [the case sub judice] demonstrate a complete lack of any effort” by the concerned party to protect himself from the fraud. Crawford v. Williams, 258 Ga. 806, 807 (375 SE2d 223). Any lesser standard results in appellate courts deciding issues of lack of due diligence by weighing the evidence or judging witness credibility. This we cannot do. Davis v. Carter, 100 Ga. App. 831 (2) (112 SE2d 319); see Parr v. Pinson, 182 Ga. App. 707 (356 SE2d 740). While Johnson may not have taken the steps which the majority believes he should have taken to protect himself against fraud, the evidence clearly shows that he took some steps. Here the jury, after having received proper instructions, rendered its verdict. On appeal, we must construe the evidence most strongly to support the jury’s verdict and the judgment. Williams v. Perry, 187 Ga. App. 586 (1) (370 SE2d 836); McLarty v. Kushner, 173 Ga. App. 432 (1) (326 SE2d 777). Further, every presumption and inference must be in favor of the verdict. Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425). Not only does the majority not follow these time-honored principles of appellate review, they have weighed the evidence under the cloak of adjudicating the sufficiency thereof. This *160marked invasion of the province of the jury should not be allowed to stand.
I further disagree with the majority’s conclusion that the appellant is entitled to a directed verdict based on Johnson’s failure to present any evidence from which the jury could have calculated the amount of damages he had suffered as a result of the fraud. OCGA § 9-12-4 provides that “[v]erdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” No such necessity exists in this case. Verdicts will be construed in favor of legality. See Gough v. Gough, 238 Ga. 695 (235 SE2d 9); Herman v. Boyer, 154 Ga. App. 617 (269 SE2d 107). It may be presumed that, although the amount of the defaulted note plus interest was the amount the jury found to be the only “actual” damages incurred by Johnson, this damage was found by them to be caused directly or in part by the defendants’ fraud in misleading Johnson into giving the note. Therefore, the sum may be collected on either account: on account of Fullerton’s contract (note) default, or on account of the bank’s and Fullerton’s fraud. What cannot be collected upon one account may be collected upon the other, until the actual damages of $162,303.03 are satisfied. Moreover, such a verdict would be completely consistent, even though rendered in one amount upon two counts or causes of action. See Paulk v. South Ga. Bldg. &c. Co., 152 Ga. 646 (111 SE 26); Rowland v. Gardner, 79 Ga. App. 153 (53 SE2d 198). I believe no other reasonable conclusion can be reached in this instance. It would have been difficult for the jury to find the bank (or Fullerton) liable in connection with this note unless there had been an actual default or breach thereof, together with the consistent damages. It may be presumed, Worn v. Sea-Cold, supra, that the jury’s obvious intendment was to assess the actual damages at the amount of the note plus interest, and to ascribe the cause of these damages to fraud as well as breach of contract. Accordingly, the actual damages may be entirely collected jointly and severally from the bank and Fullerton for fraud, or from Fullerton for breach of contract (default). This is not only reasonable, but it results in a non-contradictory construction to be made, during the appellate process, of this single award upon two causes; most importantly, consistent with the appellate principles above cited, it allows this verdict and judgment to stand. See Jackson v. Houston, 200 Ga. 399 (37 SE2d 399).
The majority asserts that “Johnson was damaged by the . . . fraud only to the extent that Johnson could not collect this indebtedness from Fullerton himself by levying against his remaining assets,” and that “[t]he jury was offered no evidence whatever on this issue, nor was it otherwise offered any evidence from which it could have determined the assignment or market value of the note.” Assuming arguendo that Johnson was damaged only to the extent asserted *161above, I believe that the jury could infer from the evidence before it, that Johnson could not collect anything either from Fullerton or his assets. For example, the jury could infer that a man who deposited a worthless check in the amount of $242,000 into his account, who conspired with a bank official concerning the transaction, who did not have the funds to make a $5,000 earnest money deposit, and who ultimately could not get a loan, was a man from whom Johnson could collect nothing. Thus, unlike my esteemed colleagues of the majority, I would apply the sound legal principles of appellate review and affirm this judgment.
Decided March 17, 1989 Rehearing denied March 30, 1989 Stewart, Melvin & House, J. Douglas Stewart, Frank W. Armstrong III, for appellant. Fletcher W. Griffin III, for appellee.I respectfully dissent.
I am authorized to state that Presiding Judge Deen and Judge Beasley join in this dissent.