dissenting.
I, most respectfully, do not agree with the majority that this case should be affirmed. Moreover, I disagree with the majority’s imposition of a penalty against the appellant since the majority concludes appellant made the costly journey to this court “for the purpose of delay only.”
In my view, the judgment in this case should be reversed, and this case returned to the trial court for a new trial as the appellant is entitled to have its defenses considered and passed upon by the jury.
Under the particular facts and circumstances of the case sub judice, the trial court erred in directing that “ ‘fraud would not be involved in this case.’ ”
“Fraud may not be presumed but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” OCGA § 23-2-57. “[I]t is peculiarly the province of the jury to pass on these circumstances.” Johnson v. Renfroe & McCrary, 73 Ga. 138. See Wells v. Blitch, 182 Ga. 826 (187 SE 86).
Furthermore, it has not been established that this appeal is wholly frivolous.
This case must be returned to the trial court for a new trial.