The evidence does not support the verdict for the defendant, and the court erred in overruling the motion for a new trial.
This is the second appeal of this case. For the pleadings and rulings thereon see Johnston v. Dollar, 83 Ga. App. 219
(63 S. E. 2d, 408). This action is upon a check for $3000, executed by J. G. Johnston and delivered to Mrs. Mary Dollar, upon which payment was stopped. Johnston's defense, in brief, was that his wife had left him and agreed to return to him if he would quit drinking and purchase a house in Polk County from Mrs. Dollar, sister of the defendant's wife, and have the deed made to her, Mrs. Johnston; that such an agreement was made and fully performed by him; but that his wife made the agreement with the intention not to perform, and Mrs. Dollar conspired with his wife to obtain the house for Mrs. Johnston, knowing that Mrs. Johnston did not intend to return to him and live with him as his wife. The jury found for the defendant, and the plaintiff excepts to the overruling of her motion for a new trial as amended.
The evidence necessary to a consideration of the general and some special grounds is as follows: "My name is J. G., Guy, Johnston, and I am the defendant in this case. I am being sued upon a check for three thousand dollars drawn on my account in favor of Mary Dollar, dated June 1, 1950, on the First National Bank. I executed that check and delivered it to Mrs. Dollar. My wife's name is Elizabeth, she had been married previous to our marriage, and when she was single, she was Elizabeth Denton. Mrs. Dollar is her sister. My wife moved out from my home--our home, rather, on January 12, 1949. We were living at that time at 208 Grady, where I have lived for twenty years, in Rome, Georgia. When she left, I didn't know where she went, not at that time . . . I don't know where Mrs. Mary Dollar lives, I know what county she lived in, Polk County, at the time this transaction took place. I did make an effort to have a reconciliation with my wife. I don't know whether or not Mrs. Dollar knew of those efforts; because I met my wife down at Cedartown and we would go out for supper. I don't know whether or not Mrs. Dollar knew about that. Later I got together with Mrs. Dollar, and my wife, Mrs. Elizabeth Denton Johnston, and had some discussion with my wife in the presence of Mrs. Dollar about a reconciliation. Well, it was I met her down at her sister's on Saturday night before the first day of June last year, the sister I mentioned as Mrs. Dollar. We met at her home in Polk County. The discussion I had with my wife in Mrs. Dollar's presence at that time was, I was to buy Mary's place and deed it to my wife with the understanding my wife was to come back and live with me. I was to pay $3,000 for the home owned by Mary Dollar at that time. My wife first began negotiating with Mrs. Dollar about buying this home. I did not make any appointment with Mrs. Dollar about purchasing this property. I was down there at Mrs. Dollar's about seven o'clock, drove up in her back yard and sat down on the steps--the three of us--and discussed it. I didn't go there just by accident, there was an appointment made. I had been endeavoring to get my wife to come back to me prior to that time, but had not been successful. At that time when Mrs. Dollar was present there was a condition placed on my wife's returning to me. She said if I wouldn't drink any more, she would come back and live with me. And I told her all right. There was another condition, providing I bought that place and paid Mary for it and deeded it to her. When I say Mary, I mean Mrs. Dollar. She said she wouldn't come back to me without my purchasing that place. I asked her when we were negotiating that night, I said, 'When are you coming back?' And she said as soon as you pay for this place. And she said that in Mrs. Dollar's presence. We were to get together at the court house in Cedartown at one o'clock. And I was to give Mrs. Dollar a check for it. Mrs. Dollar was to make a deed to my wife. My wife was to come back home and live with me, all of these things were involved in this one agreement. I gave her this check in the clerk's office in the courthouse, Polk County, at the time appointed . . . We finally got together in the courthouse at Cedartown, and I kept my part of the agreement and came on home. In carrying out the agreement, I gave the check, the $3000 check, to Mrs. Dollar. Mrs.
Dollar deposited this check, I presume, and deeded the land to my wife, that was done down there. My wife took the deed with her and went back to work, then she came up that night, on Thursday. I mean to 208 Grady Avenue, in Rome. Came home. She spent Thursday night and Friday morning she got up and went back to Cedartown. And she came back Friday night. And Monday morning she left again and hasn't been back. I mean she hasn't been back to my home since that time, have been separated from me ever since that time. The first I received any information at all about a purchase of this place in Polk County, my wife mentioned it to me, and it was through her that the contact was made to Mrs. Dollar about buying the place. If anything was said between them in their conversations which indicated to me they had previously talked about a purchase of the property, I wouldn't know about any conversation they had when I wasn't there. Nothing they said in my presence would indicate to me they had talked about it previously except the agreement . . . And after I delivered the check and she stayed until the following Monday morning which was the 5th day of June. And this contract had been entered into on the 1st day of June. I guess I can't tell what made me suspicious, but she was going to Cedartown on Monday morning. She told me she was, and was going early to carry her little boy to the dentist, that little boy was not my child, he was my wife's son by a previous marriage. I went to the house and what few clothes she brought when she went up there were gone, that was around ten o'clock and the things she had were gone; and the electric mixer that was in the kitchen. I then stopped payment on the check. The check had not been presented at the First National Bank in Rome at that time, and my stop payment order was effective. The deed was delivered to Mrs. Johnston on Thursday, I know that. I didn't see it any more. When Mrs. Johnston did come to my home on the Thursday night after closing this agreement, she brought two or three house dresses, and some blue jeans for Tommy. As to what was done by me and my wife in the presence of Mrs. Dollar to indicate that I had previously tried to get Mrs. Johnston to come back to me, well, of course, we just discussed her coming back. Nothing was said by me or Mrs. Johnston indicating I had tried to get her to come back before. I don't know whether Mrs. Dollar knew I had or not, if so, I didn't know about it. During the conversation, I told her I was so glad she was coming back home, I had missed her. Mrs. Dollar took part in the negotiations to get this place of hers for her. She wanted the money for the place. I can't remember if she did anything or said anything to her sister and to my wife, Mrs. Johnston, to get her to come back on that basis. Nothing was said in Mrs. Dollar's presence at that time when we three were together about what she was going to take to Rome with her when she came. That wasn't discussed, I didn't know whether or not she knew what she was going to take. I've had no conversation with Mrs. Dollar, the plaintiff, about this transaction since it occurred. I have had no conversation with my wife in the presence of Mrs. Dollar about this transaction, not since I bought the place. When my wife came on that Thursday evening, she brought her toilet articles, two or three house dresses--a couple, I believe--and blue jeans for Tommy, and I believe one night gown. She didn't bring a suit case. The articles she did bring she put them on a stool that sits in front of a vanity dresser and didn't move them from there, not until she left. She didn't move or put any of her things up in the usual places she had kept them previously when she was living with me, nor did she put any of the boy's things up. I stated during this time she went back to Cedartown on Friday, she carried an electric mixer out of the kitchen on Monday. I stopped payment on the check on Monday, June 5th, after she had left. And after I had discovered she had taken these clothes back with her. As a matter of fact, I wasn't most insistent on this Thursday afternoon that she go right on home with me at that time. I didn't tell her just to go get her pajamas and let us go or words to that effect. I knew she was going and couldn't come until she got off from work. I said for her to come on and I would be home. She got there about six o'clock, I live in North Rome, and to come from Cedartown you have to traverse the whole city of Rome and through the business section takes about thirty minutes . . . The condition on which my wife said she would come back and live here with me was that I wasn't to drink any more. And as a matter
of fact, she came back to me, she got here about six o'clock on Thursday, which was the day this deed was executed. And I knew she was working and she merely went back down there to her work. She came home Friday night. She didn't work on Saturday, then she was with me Thursday night, Friday night, on Saturday night and on Sunday. And she went back on Monday that is when she carried the mixer, and that is when she carried these clothes. I didn't start drinking Friday night after my wife came back to me, I wasn't drinking Friday, Saturday, and Sunday. I never touched a drop during that time, none whatever during that time."
The plaintiff testified: "I am Mrs. Mary Dollar, the plaintiff in this case. Mrs. Guy, Mrs. J. G., Johnston is my sister . . . I never saw my sister except we visited back and forth in the father's home when I was at my mother's. I never did see Mrs. Johnston except on the occasion when the arrangement was made about the purchase of my home. On Saturday night before this sale was consummated on Thursday was the only time he ever mentioned it to me. My property was for sale and she asked me if I would talk to him about selling it, that was a few days before. That was the only time I was ever with her. Following that time, Mr. Johnston came to my home with Mrs. Johnston, he brought her with him . . . There had never been any conversation between me and my sister about this sale of my place except as stated a while ago. I said my place was for sale and I had several people investigating and coming by. And on this night as to what was said by Mr. Johnston, Mrs. Johnston and by me about the purchase of this place, well, Mrs. Johnston had nothing whatever to say in it. It was a deal strictly between Mr. Johnston and myself. He asked me what I wanted for it, and I told him $3000. And he wanted to know if I would take less. I said, 'No, it was reduced then.' And then he asked me if I would take a car. I told him I wouldn't take the Buick and he wanted too much for the Ford. And it wasn't going any other way. There was nothing said about what he was purchasing this home for. About a reconciliation, I understood there was going to be. But nothing was said there about it. He did mention the fact later on but not now, but in a few months or a year. He intended to make a reconciliation and certain changes. Following that, we met in the office of the clerk of the superior court in Cedartown; it was two or three days later we did meet in the office of the clerk of the superior court, and at that time I executed this deed to Mrs. Johnston. Mr. Johnston told me to make that deed to Mrs. Johnston. At that time he gave me this check that has been referred to here and sued on . . . On the same day that this deed was executed and that check was given to me, I did hear a conversation between my sister and Mr. Johnston about her returning to Rome with him. Well, she was working, and this was during her lunch hour [when] we went to the courthouse. And he asked her how soon she could come back. And of course, couldn't go until after five o'clock, and she had to pack. And he insisted not to bring all of it, and said just bring your pajamas and come on. The little boy was to go too. I don't know whether he mentioned him, but she did go back and live with him. I didn't know about their agreement; it wasn't discussed in my presence. I never knew anything about the terms of the agreement until I heard something about it afterwards. From that time on Thursday when this deed was executed, I didn't see my sister until the middle of the week; Wednesday, I believe it was . . . I know of no suggestion made between me and sister that would convey this property to her and then she was to refuse to live with Guy Johnston. As a matter of fact, I didn't know nothing about it. Their affairs was strictly theirs. It wasn't nothing to me. I never, at any time, ever suggested anything else to cause my sister to leave Guy Johnston. I never had anything to do whatever with their domestic affairs. This deed which was executed there in the clerk's office, it was left there that day. Mr. Heagan was the clerk there in Cedartown . . . I don't know whether or not Guy had made any overtures to his wife to get her to come back and live with him; that was their business. I don't know whether he had seen her or she had seen him. Now at the time that the first discussion was begun about the sale of this house, they were separated at that time. The first person that talked to me about the sale of this house was not Mrs. Johnston, it was Mr. Johnston. He knew I had the house for sale. He asked my brother. That was what he told me
he knew about how it was for sale. She asked me to talk to Guy. My house was for sale, and she asked me if I would sell it to him. I first told her no. And then I told her I would talk to him about it. I decided to talk to Guy about selling the house because my property was for sale. I hadn't rather sell it to him than somebody else. I had other prospects to purchase this land as good as what Guy was paying. I hadn't asked but $3000 for the property. That was my price. I didn't say somebody else offered me more, that was all I ever asked for the property. I didn't have any better offers than $3000. The $3000 Guy paid me was the price I asked. That wasn't the best offer I had, I would have taken more if somebody had offered me more . . . If it meant their matrimonial troubles could be straightened out and could have been--the settlement of her matrimonial troubles were not a part of the transaction. I said that was the reason why I preferred to sell it to my sister . . . And I think anybody would give a preference to a sister or member of their family . . . I didn't let my sister have it so she could get things settled with Guy. The reason I sold it to him, he came and offered me what I had asked for the property. But I had nothing to do with their private affairs. I don't mean to say that Guy came out to my house by himself and talked to me about this first before my sister had ever said anything to me about it. I said he came with her. She was with him the first time he ever mentioned it to me. That isn't the time when my sister asked me to talk to Guy about buying it. She asked me if I would see Guy, and she asked me if it would be all right for him to come to my house, and I told her it would. That was the first time Guy talked to me about it. I hadn't talked to my sister about the sale of it, she asked me to see Guy. She made an appointment with me to talk to Guy. When they came they came in separate automobiles . . . While the three of us were there, I made my offer and he made his. My offer was to sell for $3000. His offer was to pay $3000. He didn't want to give $3000. He wanted me to take the car on it and I didn't want his car . . . This was just a transaction between me and Mr. Johnston. Mr. Johnston, who was paying the $3000, had the deed made to Mrs. Johnston. That was the instructions I had from Mr. Johnston. I don't know why he said that. I don't know why my sister wanted that property to be in her name. I don't know a thing about that . . . Now at that time there was a conversation between Guy Johnston and his wife about how soon she could go back to Rome. That didn't take place in the clerk's office. We were coming down the courthouse steps after leaving the clerk's office. She said then she had to have time to pack and get her things together. And he said let them go--some such words--but bring a few things and come on. Up until then she hadn't gone back to Guy. That is what I heard and that is all I know. I heard them making plans for her to go back. She hadn't been making plans before the deed was drawn. If there had been, I wouldn't have heard it. We three didn't talk about her going back to Mr. Johnston. When me and Mr. Johnston talked she was in the yard. If she heard it, I don't know. She had asked me if he could come to my house. She didn't say anything that night about going back to live with Guy, not to me. She never said anything to Guy, not that I heard. I know of no such conversation having taken place . . . Mrs. Johnston was there with Mr. Johnston, I don't know why. My sister and I came up here together today. She was in the courtroom today. I don't know whether she is now. I stated a moment ago in this conversation when time came for Mrs. Johnston to leave that she said she wasn't going to take time to pack and Mr. Johnston told her not to take time to pack, and pack later. That is what they said. I don't know why she didn't pack later."
J. G. Johnston, recalled for rebuttal testimony, testified: "I have heard the testimony of Mrs. Dollar concerning the negotiation one evening at her home relating to the purchase of this property. My wife was present at the time those negotiations were going on. My wife was in there in the conversation. And after we couldn't agree on the automobile in the trade, Elizabeth told me--says, 'Well, you can get the money.' Said just let us pay her the $3000. She had that part in the transaction. I heard Mrs. Dollar testify about I told my wife not to pack when I was leaving the courthouse, I didn't tell her that. I said, 'What time will you be there?' And she said, 'Well, I have to work until five o'clock.' I said, 'I will go on about five and I will be there when you come.' And I said, 'Get us there as soon as you can.' "
The evidence was insufficient to show that the plaintiff colluded with her sister to defraud the defendant. While the facts and circumstances may be sufficient to show an evil design on the part of Mrs. Johnston, they are wholly insufficient to authorize a finding that the plaintiff was a party to the plan. The only basis upon which the charge against the plaintiff could reasonably be based is: (1) that she was Mrs. Johnston's sister; (2) that she knew that the transaction was a part of a plan of reconciliation between the Johnstons; (3) that Mrs. Johnston did not live up to her agreement; and (4) that Mrs. Johnston was not put on the stand. However grave a suspicion these facts might have cast upon Mrs. Dollar's participation in the trade, they are consistent with her innocence. It is true that Mrs. Dollar's testimony was contradictory on the point whether the sale of the house was a part of the plan for reconciliation. The only legal consequence of this conflict is the construction of her testimony against her to the effect that she did know it was a part of such a plan. But this conclusion would not, with the other circumstances, show that Mrs. Dollar knew that Mrs. Johnston did not intend, at the time of making it, to keep her promise to return to her husband. Mrs. Dollar denied that there was any collusion, and her testimony in this regard was not equivocal or contradictory. The fact that Mrs. Johnston was in court and not called to testify by the plaintiff would not authorize a finding against the plaintiff. This is true for several reasons, but we shall not endeavor to exhaust this subject. The defendant admitted a prima facie case and assumed the burden of proof. The defendant's testimony did not authorize a verdict in his favor, and whatever Mrs. Dollar thought was necessary to prove in order to prevail, it cannot be held that the contention against Mrs. Dollar was sustained by her failure to offer a witness when she did not need a witness in order to prevail. The court is cognizant of the fact that slight circumstances are sufficient to show fraud, especially in transactions between relatives, but it is also true that mere suspicions are not enough, and circumstances which are equally consistent with good faith are likewise insufficient. Since there were no facts and circumstances sufficient to authorize the finding that Mrs. Dollar knew that Mrs. Johnston did not intend to keep her promise to return to her husband at the time she made the promise, the court erred in overruling the motion for a new trial. The court is of the opinion that it is unnecessary to rule upon the special grounds, as the ruling made covers most of them.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.