Bohannon v. Knapp

Jenkins, P. J.

(After stating the foregoing facts.)

1. While it is a well-settled rule that, where a conflict occurs between the recitals in a bill of exceptions and the record, the record controls (May v. State, 90 Ga. 794 (3), 17 S. E. 108; Rome Ry. &c. Co. v. King, ante, 385), yet where a conflict occurs in the certified record itself, as where a judge certifies to having given a specific instruction, and the general charge as also certified and sent up does not contain the language of such excerpt in the instruction embracing the law on the same subject, the record will be reconciled by assuming that both charges were given. Grooms v. Grooms, 141 Ga. 478 (3) (81 S. E. 210). In the instant case it appears manifest to us that the excerpts specifically excepted to, and certified by the judge to be true, constitute true and correct excerpts from the charge as given.

2. The charge as a whole has been carefully read and considered, as well as the particular excerpts excepted to, and we hold that the complaints that the judge failed to present fairiy to the jury the defense actually relied on by the defendant is altogether without merit. The language of the plea, setting forth fully, plainly, and at length this ground of defense, was given to the jury, and throughout the entire voluminous charge and in dealing with every phase of the law this one vital issue in dispute was plainly recognized and set forth. It is true that the defendant denied that the agreement under which the money was received constituted an unconditional promise to pay, and contended that it was not a mere loan—this was the one issue in dispute; and it is true that the excerpt from the charge as set forth in the 4th ground of the motion refers to the “note” as having been “admittedly” made, and the excerpt set forth in the 5th ground refers to the collateral as having been given to secure a “loan,” otherwise referred to in the charge as an “advance;” still, since there was no dispute that the money was actually loaned, advanced, or received, either as a mere loan under, an unconditional promise to repay or for the purpose of being used by the defendant in the organization of the proposed corporation, in which latter event the loan or advance was to be satisfied by the tender , or delivery of one half of the capital stock, and since the issue was not whether the money had been loaned or advanced, but related solely to how such loan or advance should be satisfied, and since the judge plainly, fully, fairly, and repeatedly instructed the jury to pass upon that issue as the determining factor in the case, we do not think that the use of the word “loan” in the matter referred to could have possibly prejudiced the jury. Nor do we think that the exception taken in the 9th ground of the motion would authorize us to set the verdict and judgment aside.

Judgment affirmed.

Stephens and Bell, JJ., concur.