Bell v. Hutchings , 86 Ga. 562 ( 1891 )

Simmons, Justice.

Mrs. Hutchings and another brought a suit on the equity side of the court to rescind a sale of land which she had made to Bell. After the evidence had been submitted, counsel for Bell presented eleven questions of fact which he asked the court to submit to the jury. Counsel for the plaintiff submitted two, one of which was, “ Shall said trade between the complainants and Bell be rescinded ? ” To this question counsel for Bell objected on the ground that the answer thereto would he a matter of law, and that it was a question for the court after the finding of the jury on the other questions, and not a question for the jury. This objection was overruled. The jury returned a verdict answering the questions, which will be found in the official report; and counsel for Bell moved to poll the jury as to their answer to the last question. The court declined to poll the jury as to this particular answer, but polled them on their verdict generally ; and this was excepted to. The court then made a decree upon the finding of the iury, to which counsel for Bell objected on the ground that the facts found by the jury in answer to all the questions except the 13th, were in law inconsistent with the finding of the jury in answer to that question, and did not in law furnish cause for rescinding the contract. These are the three errors specified in the bill of exceptions filed by Bell.

1. "We think it was improper practice for the court to submit the 13th question to the jury. Whether the trade should he rescinded or not was a question for the court to decide upon the other facts found by the jury. It would he useless generally to submit special questions of fact to the jury if the general question on the merits were submitted also at the same time. It is better to allow the jury to find as to special questions of fact without knowledge on their part as to the legal bearing of their findings. But in the present ease, inasmuch as the special facts found by the jury in answer to the interrogatories propounded are sufficient to authorize the decree made in the case, we will not reverse the judgment on this ground.

2. There was no error in refusing to poll the jury upon any specific answer made by them to the questions propounded. The answers were not separate verdicts, hut all the answers made one verdict. We do not mean to say that if the court in .its discretion had seen fit to poll the jury as to any specific answers, it would have been error. Polling the jury, in a civil case, is a matter within the discretion of the trial judge, and he can grant a motion to poll them, either upon the whole verdict, or, for any sufficient reason, upon the answer to n specific question; and we will not undertake to control his discretion upon these matters of practice.

3. As to the 3d objection, we think the facts found by the jury in answer to the questions other than the 13th were sufficient to authorize the judge to enter a decree of rescission of the contract, and we think the answers to those questions were not inconsistent with the finding of the' jury in answer to the 13th question. "We find from the pleadings in the case that Mrs. Hutchings contracted to sell Bell a plantation in Polk county, and that Bell agreed to pay her $5,000 in cash, give his note for $1,400 payable in twelve months, and convey to her 5,390 acres of land in Clinch and Echols counties, and 15 acres in Florida worth $600. The jury found in answer to the questions propounded that Bell could not make a good title to the 5,390 acres in Clinch and Echols counties, and could not fully compensate her in money for the loss of this land; that he committed a fraud upon her in selling her the land when ho could not make a good title to it, and that at the time of the contract no value was placed by the parties on Mrs. Hutchings’ land. Taking all these facts together, we think the court was right in entering the. decree for rescission. This was not a contract hy Mrs. Hutchings for the sale of her laud for money alone, but was a contract for its sale partly for money and partly for other land;, and when the title to the land which Bell had agreed to convey her failed, it was a non-performance by Bell of his covenants with her to make her a good title to the Clinch and Echols land. She was entitled to have the land for which she had contracted, and Bell could not comply with his contract by offering her other lands of the same kind; and, as we have seen’, the jury found that she could not be compensated in money for the loss of this particular land. (See Code, §2859.) For these reasons and others that might he mentioned, we affirm the judgment of the court below.

4. It appears from the record that the defendant in error was not satisfied with the specifications of the record made by the plaintiff in error in the bill of exceptions, and petitioned the judge to have certain portions of the evidence sent up; which was accordingly done. In looking into .the case we find that tliis evidence is entirely superfluous and immaterial, and is not necessary to a clear understanding of the case; and we therefore direct that the cost of bringing it here be taxed against the d*efendant in error; and if the plaintiff in error has paid it in the court below, that he have judgment therefor in that court.

Judgment affirmed.