Cantrell v. Byars , 72 Ga. App. 549 ( 1945 )

I do not think that there are any conflicts in the decisions of this case as reported in66 Ga. App. 672, and 71 Ga. App. 287.

After the first trial of the case it was brought to this court and reported in 66 Ga. App. 672, where it was stated: "Byars' contention is that he acted on Cantrell's conduct to his own injury, and that Cantrell is now estopped to deny the release. The trouble with this contention is that Byars testified that Cantrell expressly agreed to release him from liability on the notes sued on if he kept his part of the alleged agreement. He not one time expressly or impliedly stated that he was induced to act by the conduct of Cantrell as shown by Cantrell's quoted testimony. In the absence of evidence showing that Byars acted on the conduct of Cantrell, such conduct on Cantrell's part does not estop him to contend that there was no release of Byars on the notes sued on." The case was reversed on the ground that the court erred in directing a verdict for the defendant. When it went back for the second trial, the defendant, it seems to me, undertook to amend his petition in order to make it conform to the above statement by this court, and I think the amended plea was in accord with the statement made by this court in 66 Ga. App. 672.

In the second trial of the case which was reported in 71 Ga. App. 287, the evidence of the plaintiff was substantially the same as in the first trial, in so far as it related to the plea of estoppel. However, in the second trial there was evidence bythe defendant showing that he was induced to act by the deception of the plaintiff. Thus the evidence of the defendant was different on the second trial. In this trial, which was reported in 71 Ga. App. 287, Byars testified: "I acted and relied on the statement that Cantrell made to me at that time. I would have been forced to go into bankruptcy if the agreement made by us at that time had not been acted on by me. I could not pay the interest on the notes, much less the principal. The statement that was made to me by Mr. Cantrell at that time was acted on and relied on by me, I could not act on anything else." Subsequently, on cross-examination, Byars testified: "I say Cantrell told me that he would release me from that indebtedness and I relied on it; he did not evade me; he made just the answer that I said he made."

The amendment to the defendant's plea and answer in the second trial (as reported in 71 Ga. App. 287) alleged, among other things, that the defendant was induced to act by the conduct of Cantrell (as shown by the testimony of Cantrell on the former trial and it should be noted that this testimony was substantially the same on both trials). The mere fact that the defendant did not know that Cantrell purposely made his answer evasive in order to mislead him, and thus perpetrate upon him a deception which was not discovered until during the progress of the first trial, did not prevent him from thereupon pleading and proving that such deception (evasive answers) caused him to act as he did with reference to the agreement. He construed Cantrell's answers as being direct answers agreeing to his proposition, while Cantrell differed with him, and said that his answers were evasive, and were made for the purpose of inducing the defendant to act, which act, under the testimony, could have been found by the jury to have been a detriment to the defendant. It seems to me, that if the defendant's construction of the acts and words of Cantrell were correct, the jury would have been authorized to find in favor of the defendant. On the other hand, if the construction of Cantrell's words and acts were evasive and made for the purpose of inducing the defendant to act to his detriment, and Cantrell knew that the defendant placed a different construction upon the contract from what he did, and proceeded all through these dealings knowing that he had induced the defendant to place such a construction upon his acts and sayings, and that the defendant acted upon them to his detriment, the jury would have been authorized to find for the defendant on the plea of estoppel. As to the essential element of estoppel referred to in 66 Ga. App. 672, and later pleaded by amendments at the second trial, the jury would have been authorized from the facts pleaded, if proved, to have found that Byars "was induced to act on the conduct of Cantrell." I think, therefore, that the overruling of the demurrer to the amended answer, as it related to this element of estoppel, did not conflict with what was said in 66 Ga. App. 672.

I come now to discuss the question whether the evidence in the second trial authorized a charge on estoppel. "The intention of the parties may differ among themselves. In such case, the meaning placed on the contract by one party, and known to be thus understood by the other party, at the time, shall be held as the true meaning." Code, § 20-703. I also think that in the second trial of the case, under one phase of the evidence, the jury were authorized to find that the plaintiff made an agreement with the defendant, as contended by the defendant, or that even if the intention of the parties differed among themselves, the meaning placed on the contract by the defendant and known thus to be understood by the other party at the time could be held as the true meaning. Under some phases of the pleading and the evidence the plaintiff would not be estopped to contend that there was no release of the defendant on the note sued on, and the issue would be whether the plaintiff made an agreement as contended by the defendant — the defendant swearing that he did and the plaintiff swearing that he did not. But under another phase of the evidence the jury were authorized to find that, because of the successful deception of the plaintiff in making the defendant believe that he had agreed to release him from the note sued on if he would not go into bankruptcy and would pay another specified note, the defendant paid the note and did not go into bankruptcy, and that such conduct on the part of the plaintiff estopped and barred him from recovering from the defendant on the note sued on.Yarbrough v. Seagraves, 47 Ga. App. 436 (170 S.E. 553);Sovereign Camp v. Heflin, 59 Ga. App. 299, 305 (200 S.E. 489). Thus, in either event, the jury would have been authorized, under the pleading and the evidence in the second trial, to have found for the defendant, and if this is true, the judge did not err in charging on the law of estoppel, as set out in the pleading. I do not think that there is anything said in 71 Ga. App. 287, which is in conflict with what is said in 66 Ga. App. 672. Applying the rules of law as announced in both of these cases (which is, of course, the law of the case), and the other rules of law applicable in the third trial of this case, now under review, to the evidence in the third trial, I think that the case now under review should be affirmed. Judge Sutton authorizes me to state that he concurs in this opinion.