Opinion
14455.
MARCH 11, 1943. REHEARING DENIED MARCH 24, 1943.
Equitable petition. Before Judge Eve. Worth superior court. November 23, 1942.
J. H. Tipton and R. D. Smith, for plaintiff in error.
Robert B. Williamson and Robert R. Forrester, contra.
1. The trial court, and not the Supreme Court, has authority to correct errors that appear in the record of the trial court. Where it appears that the record in the Supreme Court is sufficient for a decision on the questions raised by the bill of exceptions, and that additional record requested by one of the parties would not materially affect the case, this court will not require that the additional record be certified and sent up.
2. The petition is by one partner against the other, seeking dissolution of the partnership and setting forth claims necessitating an accounting. It is therefore sufficient to withstand the general demurrer, and the court did not err in overruling the same.
3. The special demurrers assailing that portion of the amended petition which sets forth claims against the defendant, upon the grounds that it is too general and indefinite, and that the claims are not itemized and dated, are without merit. A petition for an accounting need not be more definite than to contain allegations which show that on an accounting the petitioner will likely be entitled to recover judgment for some amount. Gould v. Barrow, 117 Ga. 458 ( 43 S.E. 702); Smith v. Hancock, 163 Ga. 222 ( 136 S.E. 52); Calbeck v. Herrington, 169 Ga. 869 ( 152 S.E. 53); Atlanta Title Trust Co. v. Tidwell, 173 Ga. 499, 529 ( 160 S.E. 620, 80 A.L.R. 735); Luther P. Stephens Investment Co. v. Berry Schools, 188 Ga. 132 (2) ( 3 S.E.2d 68); Southern Feed Stores v. Sanders, 193 Ga. 884 (2) ( 20 S.E.2d 413).
4. Whether or not the confidential relationship of partners applies to transactions outside of the scope of the partnership, it does not apply here, where it appears that the partnership was not in existence at the time of the transaction under consideration. Since there was a total absence of such confidential relationship, the petitioner was not entitled to avoid his obligation under a deed and notes signed on March 10, 1937, upon the ground that he relied upon representations of the defendant which misrepresented the nature and content of the papers signed, and because he did not have his glasses and could not read without them, but abandoned his expressed desire to go by home and get his glasses because he trusted the defendant.
No. 14455. MARCH 11, 1943. REHEARING DENIED MARCH 24, 1943.
The amended petition of B. S. Gunter against L. E. Hancock alleges, in substance, the following: In 1935 and 1936 the petitioner operated a farm belonging to the defendant, the relationship being that of tenant and landlord. In 1935 the petitioner loaned the defendant $500 with which to pay an instalment due on a loan against the farm, accepting the defendant's promise to repay the loan within a short time. In 1936 another instalment of $500 became due, and the defendant requested another loan of $500 from petitioner. This request was at first refused, the defendant being reminded that he had not repaid the first loan made the previous year. The defendant thereupon proposed to sell petitioner a half undivided interest in the farm, asserting that the equity in the farm was worth $4000. The petitioner was to buy the half interest, and the two of them were then to work out the existing loan against the farm. They were to operate the farm as partners. The petitioner agreed that he would purchase the interest in the farm, and, knowing it would take some time to work out the details of the trade, he advanced $500 with which to pay the instalment then due. "They negotiated" with reference to the trade during the balance of 1936 and into the spring of 1937, and it was finally consummated on March 10, 1937. The existing loan was against a tract containing 174 acres, but the plaintiff was buying an interest in only 137.2 acres of this tract. It was agreed that the amounts advanced by petitioner would leave a balance of $514.50 due to the defendant. In paragraph 4 the petition alleges, that the petitioner had implicit confidence in the defendant, and requested him to have the necessary papers drawn to convey to petitioner his half interest in the land and a note for $514.50 for the balance of the purchase-price, to be signed by petitioner; that on March 10, 1937, the defendant advised petitioner that the papers had been prepared, and requested petitioner to go with him to the home of P. C. Coleman, a justice of the peace, for the purpose of executing the papers; that when they arrived at Coleman's home the defendant handed to petitioner a paper which he stated was a warranty deed conveying to petitioner the half interest in the land; that on their way to Coleman's home the defendant stated that he did not intend to take any security for the balance due on the land, that the petitioner had loaned him $500 on two previous occasions without security, and that the petitioner was to execute nothing but a plain promissory note for the balance of $514.50; that the petitioner told the defendant that he did not have his glasses and could not read without them, and that he preferred to return home and get them before signing any papers; whereupon the defendant told petitioner that he should know that the defendant would not mislead him, that there was no necessity for him to read the note before signing it, that the defendant would read it to him and would tell him the truth, and that he was only executing a plain note for the balance due; that the petitioner, knowing the defendant to be a partner in the land and operation of the farm and believing he had truthfully stated the contents of the instrument, signed what the defendant stated was a plain promissory note for $514.50; that he had no knowledge of any other papers which were executed; and that he left with his warranty deed, relying upon the defendant, his partner, to take no advantage of him in executing the papers, and acted upon the trust and confidence which he had in the defendant.
The petition further alleges, that in August, 1937, the petitioner paid the defendant in cash $514.50, in settlement of a note for that amount; that he requested his note, and the defendant said it was at home; whereupon they went to the home of the defendant to get the note, but the defendant was unable to find it. The petitioner asked for a receipt for the money, but the defendant said he would deliver the note in a few days, saying also that there was nothing against the plaintiff and nobody would get the note; that on at least two subsequent occasions the petitioner went to the defendant's home to get the note, and he was finally informed by the defendant that he had found the note and had burned it, and that there was nothing on record against petitioner for the land. In August, 1938, the petitioner and defendant jointly procured a loan from the Federal Land Bank and Land Bank commissioner, executing a deed on the land jointly owned by them to secure the loan, and representing that other than the existing loan, which was to be paid with the proceeds from the present loan, there was no lien against the land. Paragraph 10 avers that in 1940 the defendant said he was in need of money, and petitioner advised him that he could not let him have any, because he had already overdrawn his share of the profits; that thereupon the defendant angrily informed the petitioner that he wanted him to pay $514.50 due on the purchase-money of the land, saying the note was on record. The petitioner's search of the deed records revealed that on April 8, 1940, there was duly recorded a security deed from petitioner to defendant, dated March 10, 1937, conveying a half interest in the land above described, to secure the payment of four notes of $514.50 each. The petitioner alleges, that this security deed is not the act of the petitioner; that if he signed it or the notes, he did not know what they were at the time; that he was misled, deceived, and misinformed by the defendant; and that if they were executed as they purport to have been, the defendant perpetrated a fraud upon petitioner by stating that he was signing only a note; that the defendant is now advertising the land for sale under the security deed, to pay the notes secured thereby; that the defendant is insolvent and unable to respond in damages, and the petitioner will suffer irreparable loss unless equity will prevent the sale. Other portions of the petition set forth general figures alleged to represent the results of the joint operation of the farm for the years 1937, 1938, 1939, and 1940. It purports to set forth the net profits and losses resulting from such operation, together with the amounts which the defendant has withdrawn. These amounts are not broken down to show the various items and dates thereof, but they do show that upon an accounting the defendant will likely be indebted to the petitioner in some amount. The prayer is for injunction to prevent the sale under the security deed, for appointment of an auditor, for an accounting, a dissolution of the partnership, judgment; and for general relief.
The defendant's general and special demurrers were overruled; and he excepted pendente lite to that judgment. The trial resulted in a verdict and judgment for the plaintiff, for the cancellation of the security deed and judgment for $1800. The defendant's motion for a new trial was overruled, and he excepted.
1. The defendant in error has suggested in writing a diminution of the record, as provided in the Code, § 6-812. It is stated that the motion for a new trial was overruled and denied by an order dated November 14, 1942; that on November 16, 1942, at the request of movant, the court ordered further argument on the motion, and on November 23, 1942, the court refused to set aside the judgment denying the motion, but ordered that the judgment originally dated November 14 be changed in date to November 23, in order to give ample time to except. The suggestion recites that the original order dated November 14 appears on the minutes of the court and the date is written with a typewriter, and that the date has been changed with a pen by writing thereon the date "23rd." The bill of exceptions assigns error on a judgment dated November 23, 1942, overruling the motion for a new trial. The judgment appearing at page 183 of this record, dated November 23, 1942, and signed by the trial judge, recites that "after duly considering the above motion for a new trial, and after a hearing had thereon, it is ordered by the court that the motion for a new trial heretofore filed by L. E. Hancock in the above matter be denied, and a new trial is hereby refused." If the suggestion of the diminution of the record is made for the purpose of correcting what is thought to be error in the record of the trial court, then it should be obvious that the trial court, and not the Supreme Court, is the proper one in which to seek a correction of such errors. Beecher v. Carter, 189 Ga. 234 ( 5 S.E.2d 648). The suggested record would in no wise aid this court in ruling upon the exceptions contained in the bill of exceptions. The judgments there complained of are in the record in this court. We will not request the additional record.
2, 3. These headnotes do not require further elaboration.
4. The grounds of special demurrer assailing those portions of the amended petition which seek to avoid the security deed and the four notes thereby secured, dated March 10, 1937, on grounds of alleged fraud, are meritorious. Both the allegations of the petition and the brief of counsel in support thereof seek to sustain petitioner on this point upon the basis that a confidential relationship existed by virtue of a partnership. The provisions of the Code, §§ 37-707 and 75-201, together with Wimberly v. Ross, 152 Ga. 258 ( 109 S.E. 500), are cited and relied upon. The fatal weakness of this argument is found in the fact that on the day the deed and notes were signed, and when it is alleged that the confidence was reposed, the relationship of partners did not exist. The petition clearly states that the basic foundation of the partnership was to be the purchase by petitioner of an undivided interest in the described tract of land, and the petition alleges that the conversations and negotiations leading to the partnership and the purchase of this land were finally consummated on March 10, 1937. Thus it is plain that the language of the petition itself takes the question of a partnership out of any consideration at the time the instruments were executed and when it is claimed that a fraud was practiced by the defendant upon petitioner. Under these circumstances, whether or not the relationship of partners creates a confidential relation that may be relied upon in matters and transactions outside the scope of the partnership, it could not be relied upon here, because of the non-existence of the partnership at the time.
But it is further argued, that, independently of a confidential relationship, the petitioner was authorized to rely upon the defendant, and that the defendant perpetrated a fraud upon him, relievable in equity. He cites Chapman v. Atlanta Guano Co., 91 Ga. 821 ( 18 S.E. 41), where this court held that the defendant was entitled to protection against a fraud practiced by the plaintiff's agent, who represented to the defendant that the note in question was for the sum of $53.10 when in fact it was for $90.20. The note was signed at night. As stated by this court in Lewis v. Foy, 189 Ga. 596, 598 ( 6 S.E.2d 788): "While there may be serious doubt and uncertainty as to what particular facts will constitute fraud authorizing rescission of a written contract, yet there can be no doubt as to the rule of law by which such facts must be measured in determining whether or not a written contract may be rescinded." It was there held that a party who can read must read, or show a legal excuse for not doing so, and that fraud which will relieve a party from reading must be such as prevents him from reading.
In Dortic v. Dugas, 55 Ga. 484 (6), it was said: "With equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequence of his neglect." This means that in order to be heard in equity one must show that he made reasonable use of the means available to him to ascertain the truth. It means also that one may not voluntarily accept the statements and representations of another and act thereon, instead of looking for himself, and then obtain relief in equity from the obligation which he assumes. This principle or idea was clearly discussed by Chief Justice Bleckley in Dyar v. Walton, 79 Ga. 466 ( 7 S.E. 220). There the defendant had concluded a settlement of his fertilizer account by executing four notes secured by a mortgage on land. In resisting a foreclosure of the mortgage, he set forth as his defense, that he was unprepared for the settlement, was absent from home, pressed with other business, and that his books and papers were not at hand; that he was to unwell to examine calculations; that the agent of the other party was urgent and pressing; that he made the settlement, trusting entirely the calculations of the agent and the agent's promise that if errors were made they would be corrected. It was said: "If he was unprepared, it was reckless disregard of his lack of preparation which brought about the result. He knew then the importance of his books and papers; their importance is not an after-discovered fact. . . Courts do not attempt to guard men against their own rashness and folly, but will leave them as free agents to protect themselves. A settlement deliberately made, and closed up by solemn writings deliberately executed, is not a thing to be opened as matter of indulgence to gross negligence, though in consequence of such negligence one party obtained an advantage over the other. There was no artifice employed to draw Mr. Dyar into this settlement. And even if he trusted to the agent then representing the adverse party, as to some matters of law involved, he had no right to take his law from that source unless he was willing to abide by it, but ought to have obtained such advice as he needed, if he did need any, from sources better informed or more friendly to his interest. He can not complain if the courts afford him no better justice than he administered to himself in a settlement voluntarily made. The very object of that settlement, if it had any object, was to fix upon a standard of justice. He gave his consent to that standard. He deliberately measured his liability in dollars and cents to the company he had been representing, and he signed and sealed the evidence which he must have known might be used as a guide to the courts in administering remedies against him to enforce his liability."
In Lewis v. Foy, supra, it was held that the absence of one's glasses, where there was no emergency requiring immediate action, was not sufficient to justify that one in relying upon the representation of the other party as to the nature and content of the written instrument executed. That decision is authority for a ruling here that the absence of petitioner's glasses did not excuse him for relying upon representations of the defendant as to the nature and content of the papers he signed. There was no trick or artifice upon the part of the defendant which prevented the petitioner from procuring his glasses, if need be, and reading for himself the notes and deed which he signed. And while it is alleged that the defendant said he would read the papers, it is not alleged that he did read them. As stated by Judge Bleckley in the above quotation, "he deliberately measured his liability in dollars and cents, . . and he signed and sealed the evidence which he must have known might be used as a guide to the courts in administering remedies against him to enforce his liability." The allegations of the petition which seek to avoid the security deed and notes executed on March 10, 1937, are insufficient for that purpose, and should have been stricken on demurrer. The court erred in overruling the special demurrers attacking these portions of the petition.
Judgment reversed. All the Justices concur.