Manget-Brannon Co. v. White Crown Fruit Jar Co.

Jenkins, J.

(After making the foregoing statement.) If the jury had simply found for the defendant under the pleadings, the effect of the verdict would have been a rescission of the contract, and under it a judgment would have been entered accordingly, with recovery for the plaintiff in the amount of the tender and of the articles so offered to be returned. The gist of the tender as pleaded was the offer to return the unused portion of the articles received, together with the equivalent in value of such as had been disposed of prior to the ascertainment of the alleged fraud. It appears that they manifestly undertook to find in favor of the rescission asked and for the tender pleaded, except that it appears to have found that the amount of money tendered did not represent the contract price of all the articles disposed of, and that consequently a corresponding portion of the articles embraced in the tender were not subject thereto. But while the verdict appears to have been in favor of the rescission, and attempted to enforce the tender as in substance made, still the finding can not be said even in substance to have covered the issues made by the pleadings. There are fatal deficiencies and discrepancies between it and the pleadings, and this- court is of the opinion that the verdict rendered should therefore be set aside, in order that a finding either for the plaintiff or for the defendant, upon the issues made, may be had. Civil Code (1910), § 5924.

While it is true, as contended by the defendant in error, that the presumptions are in favor of the validity of verdicts, which must be given a reasonable intendment and sustained whenever it is possible to do so, applying for such purpose the maxim which holds that to be certain which can be made certain, still in doing so expression must be given to the true meaning and intent of the finding. Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (5) (58 S. E. 244). In our opinion the judgment entered in this case is not in accordance with the true intent of the verdict; and since it likewise fails to conform to the substance of the defense pleaded, it should be set aside, and a new trial ordered.

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur.