Green v. Lowry , 38 Ga. 548 ( 1868 )

Brown, C. J.

We are satisfied that the Court erred in withdrawing the evidence from the jury in this case, and ordering a verdict for the plaintiff below, for the full amount of his claim.

The evidence seems to justify the conclusion, that the obligation for $2,500, given upon the Confederate basis, by J. Percy Green for the board of his sisters, was given for as much as Lowry was entitled to, under his agreement with them. And this view of the case is strengthened by the evidence as to the service of the negroes which he received while they were with him.

The next question for consideration would seem to be, whether the obligation for $2,500, made when one dollar in gold was worth forty-six in Confederate Treasury notes, was a sufficient consideration for the note for four hundred and fifty dollars to be discharged in legal money, which was made by J. Percy Green and his sister Julia, under the circumstances detailed in the evidence. If the promissors were not overreached by Lowry, and there was no fraud or mistake in the transaction, the consideration, however inadequate if not illegal, was sufficient.

The Code, sections 2,700, 2,701, lays down the rule as follows : “ Mere inadequacy of consideration alone, will not void a contract, if the inadequacy be great, it is a strong circumstance to evidence fraud; and on a suit for damages for breach of the contract, the inadequacy of the consideration will always enter as an element in estimating the damages.

If the consideration be founded in a mistake of fact or law the promise founded thereon can not be enforced.”

In Story on Contracts, section 432, the rule is laid down in this language:

“ When the inadequacy of consideration is so gross as to create a presumption of fraud and overreaching, or of unconscientious advantage, taken under circumstances of distress or improvidence, on the one side, or of mental incompetency on the other, the contract founded thereon can not be enforced at law, or in equity; and a Court of equity will, at the instance of the party deceived, interfere and set it aside after it is executed. In cases of gross inadequacy the Court will also take advantage of every circumstance which indicates imposition or improper advantage, to found a presumption of fraud, and thereby to rescind the contract. The mere inadequacy of the consideration is not, however, in such cases, the ground upon which a contract is invalidated, but the fraud which is thereby indicated, and however inadequate the consideration may be, yet if the circumstances of the case indicate no unfair advantage on the one side, or no great incompetency on the other, the contract will be valid.”

See also, Warmock vs. Rodgers, 9 Ga. R.. 60; James vs. Morgan, 1 Lev. 111; Hough vs. Hunt, 2 Ham. R. 506; Williams vs. Powell, 1 Iredell Reps. 460; Hardeman vs. Burge, 10 Yerger’s R., 202; Butler vs. Hogkill, 4 Dess. R., 651; Udall vs. Kinny, 3 Cow. R., 590; Johnson vs. Dorsy, 7 Gill R., 269; Edwards vs. Burt, 15 Eng. Law and Equity R., 435 ; Judge vs. Wilkins, 19 Ala., 765.

There is at least some evidence in this case that J. Percy Green acted under the impression that he was in law bound to pay the $2,500 called for by the obligation, in lawful money, and that he may have acted under a mistake of law, as to the true consideration of the new note. Did he give his free assent to the contract? Was his free will restrained by threats, or other arts? Revised Code, section 2,710. Julia had been boarding with Lowry, the plaintiff, and had been accustomed to look to him as her protector, while her brother was absent in the army. She had just arrived at lawful age. Was she overreached by him? Was he guilty of fraud in inducing them to believe that he would forbear and give time of payment not expressed on the face of the note, when he did not intend to do so? Were the makers of the note under a mistake as to the effect of the scaling ordinance just passed by the Convention ? Were they both young and inexperienced, and very much under the influence of Lowry? Was there gross inadequacy of consideration ? As the evidence bore upon these points, and as it is the peculiar province of the jury to determine upon the evidence, and to find the facts, we think the Court should have permitted the evidence to go to the jury.

2. As the parties were ignorant of the fact that the law required a revenue stamp to be placed upon the note, and as they got together after that fact was ascertained, and Green placed the stamp upon it, (by which the government received its revenue), and again delivered the note to Lowry, we'are of opinion, that Green will not now be permitted to controvert the fact that the note is legally stamped.

Judgment reversed.