Huson Ice & Coal Co. v. Thornton , 143 Ga. 297 ( 1915 )

Lumpkin, J.

(After stating the foregoing facts.)

1. The plea does not present the somewhat ordinary case of a purchaser of stock who finds it not worth as much as he thought it was, and claims a failure of consideration, or a breach of warranty; or the other quite common case of one who is induced by fraud to make a purchase, and, having received something of value, seeks to obtain rescission without restoration or prompt offer thereof. It alleges a case where the owner of a badly worn, rust-eaten, and practically worthless ice plant sought to unload it upon others by means of fraudulent representations and through the device of organizing a corporation to take over the property, and the sale of stock to be issued by it. The representations averred were not mere expressions of opinion as to the value or saleableness of property, nor mere boasting in regard to merchandise. They were false statements as to facts, charged to have been knowingly and wilfully made. It did not appear from the allegations that the purchaser relied on his own judgment, or was so negligent in making the trade as to prevent relief.

When the defendant gave his note, there was no Union Point Ice Company. The note was alleged to have been given to the plaintiff for the purchase of stock, and not for the machinery itself. According to the allegations of the plea, this agreement was procured by fraud, and the defendant has never received the stock, and it is worthless. The demurrer to the plea was properly overruled. It was based on an apparent misconception of the substantial defense set up.

g. There may have been evidence on -which the jury could have found a different verdict. But it can not be held that they were not authorized to find, as they did, for this defendant. He testified, among other things, that the note was given to the plaintiff for two shares of stock; that he never received any stock or anything at all for his note, though he signed a list, and certain certificates were made out in his name (which were held and produced in court by the plaintiff); and that he was not an officer in the new company after it was organized. There was sufficient evidence to support a finding -that a fraud was perpetrated on the defendant, and there was no error in submitting that issue to the jury. On the trial a written contract between the plaintiff and the Union Point lee Company, the latter signing through its secretary and treasurer, was introduced by the plaintiff. It was an agreement by that company to buy from the plaintiff a second-hand ice machine, with a “rated capacity” of fifteen tons, for the price of $10,000. The defendant testified that he never heard of such a contract before the trial. It was argued that this contract effectually destroyed the defense. The defense, however, was, not that the defendant bought the machine and that it was not of the character represented or warranted, but that he gave his note to the plaintiff, before the new company was organized, for two shares of stock which he was to receive; that he was entrapped into so doing by fraud; and that the stock was worthless, and he never received it, and had nothing of value to tender back. The contract between the new company and the plaintiff was made nearly two months after the note was given, and after the new company had been organized. This was not a suit by the company on a stock subscription; and the ruling in South Georgia & Florida R. Co. v. Ayres, 56 Ga. 230 (2), is not controlling. Nor did the evidence of a member of the plaintiff company, as to receiving the note from the new company as part payment for the machinery, necessitate a finding for the plaintiff, in view of the other evidence. Whether the defendant was guilty of laches in repudiating the agreement with the plaintiff was a question for the jury, and we can not say that their finding was without support in the evidence, so 'as to be erroneous as matter of law.

3, 4. Some of the rulings of the court may not have been entirely beyond criticism. For example, the charge as to whether “the defect, if any, in not making the amount of ice stated was due to a deficiency in the water supply,” standing alone, may not be an apt expression. But, when taken in connection with the entire charge, it does not require a new trial. Some of the requests to charge were properly refused, and others were sufficiently covered by the general charge. The seventh and eighth grounds of the motion for a new trial were not referred to in the brief of counsel for the plaintiff in error, and will be treated as abandoned.

Upon the whole, there was no error in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.