160 S.E.2d 859

A. M. KIDDER COMPANY, INC. et al. v. CLEMENT A. EVANS COMPANY, INC.; and vice versa.

43104, 43258.Court of Appeals of Georgia.ARGUED NOVEMBER 9, 1967.
DECIDED FEBRUARY 9, 1968. REHEARING DENIED FEBRUARY 29, 1968.

1. Under the Appellate Practice Act the trial judge may, in his discretion, hear and determine a motion for new trial before the transcript of evidence and proceedings is prepared and filed.

2. Where the only direct evidence was that the plaintiff had not been paid the amount which he sought in this action, the trial judge erred in failing to direct a verdict for the plaintiff on the defendant’s plea of payment.

3. Where the evidence was in conflict as to whether the plaintiff wilfully acted in violation of a Federal Reserve Board regulation, the trial judge did not err in submitting such issue to the jury.

4. The trial judge committed no harmful error in excluding one of the defendant’s affidavits.

5. Under the circumstances related in this case, the trial judge correctly charged the jury concerning the necessity that the plaintiff exercise ordinary care to ascertain the truth and protect itself from loss.

ARGUED NOVEMBER 9, 1967 — DECIDED FEBRUARY 9, 1968 — REHEARING DENIED FEBRUARY 29, 1968 — CERT. APPLIED FOR.
Complaint. Fulton Civil Court. Before Judge Williams.

Clement A. Evans Co., Inc., brought this action in the Fulton Civil Court against A. M. Kidder Co., Inc., Edward M. Garrett and William J. McAlpin, Jr. The plaintiff sought to recover damages arising out of an alleged conspiracy by the defendants to defraud it in certain stock transactions. For a complete statement of the allegations see A. M. Kidder Co. v. Clement A. Evans Co., 111 Ga. App. 484 (142 S.E.2d 269), when the case was previously before this court on demurrer. The case proceeded to trial resulting in a verdict for the defendants. The plaintiff moved for a new trial on the general grounds and on various special grounds. At the time of the hearing on the motion, the transcript of the evidence had not been filed; however, the trial judge after consideration of the evidence granted a new trial on the general grounds only.

The defendants appeal from the grant of a new trial and enumerate as error the trial judge’s grant of the same without the

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transcript having been filed. The plaintiff filed a cross appeal containing 14 enumerations of error. These enumerations of error are synthesized for purposes of this appeal basically into 4 grounds which are: “1. The court erred in overruling the plaintiff’s motion for a directed verdict on the plea of payment, in submitting said plea to the jury and in charging the jury with respect thereto. 2. The court erred in overruling the plaintiff’s motion for a directed verdict with respect to the special pleas in bar and contentions of the defendants to the effect that the plaintiff had violated Section 4 (c) (8) of Regulation `T’ of the Federal Reserve Board and was barred from recovery by reason thereof, in submitting said pleas and contentions to the jury and in charging the jury with respect to said pleas and contentions. 3. The court erred in excluding from evidence defendant McAlpin’s sworn statement which was identified and tendered in evidence as plaintiff’s Exhibit No. 1. 4. The court erred in submitting to the jury the contention of the defendants that the plaintiff did not exercise ordinary care to discover the fraud and protect itself therefrom and, for that reason, was not entitled to recover and in charging the jury with respect to such contention.”

Smith, Cohen, Ringel, Kohler, Martin Lowe, Hoke Smith, Claude E. Hambrick, William J. McAlpin, Jr., for appellants.

Hansell, Post, Brandon Dorsey, Hugh M. Dorsey, Jr., Jule W. Felton, Jr., J. Clifton Barlow, Jr., for appellee.

QUILLIAN, Judge.

1. The enumerations of error in the main appeal (Case 43104) complaining solely of the grant of a new trial on the ground that no transcript of the evidence had been filed are without merit. Code Ann. § 70-301 (Ga. L. 1965, pp. 18, 30) provides in part that the trial judge may in his discretion “hear and determine the motion before the transcript of evidence and proceedings is prepared and filed.”

Nothing held herein is in conflict with Hill v. General Rediscount Corp., 116 Ga. App. 459 (157 S.E.2d 888) because in the case sub judice the order does not indicate that the trial judge did not consider the evidence in granting the motion for new trial. Absent a contrary showing, this court will presume that the judgment is supported by every fact essential to make it valid and binding. Kiser v. Kiser, 101 Ga. App. 511 (1) (114 S.E.2d 397); Law v. Coleman, 173 Ga. 68 (159 S.E. 679).

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2. Since as a result of the affirmance on the main appeal the case remains to be retried, we now consider the grounds of the cross appeal as set out in the statement of facts. See A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352, 365 (191 S.E. 446) Robinson v. Ga. Savings Bank c. Co., 185 Ga. 688, 700 (8) (196 S.E. 395); Reed v. Reed, 202 Ga. 508 (2) (43 S.E.2d 539).

The first ground complains that the court erred in submitting the defendant McAlpin’s plea of payment to the jury since the plaintiff was entitled to a directed verdict on that issue. On the trial of the case the defendant contended the fact that he gave the plaintiff a note for the amount in question and certain property (stocks) as security for that note was evidence of some payment. The security was given to a lawyer for the plaintiff who testified he held title as trustee for the defendant McAlpin. He related that no proceeds had been derived from the property and the plaintiff had not received any sums therefrom or otherwise as payment on the note.

Notes are not payment until themselves paid, without an express agreement that they are to be accepted as such. Stokes v. Walker, 21 Ga. App. 630 (2) (94 S.E. 841); Ketcham v. Hines, 29 Ga. App. 627 (116 S.E. 225); Sulter v. Citizens Bank Trust Co., 51 Ga. App. 798 (181 S.E. 694); Cohen’s Dept. Stores v. Siegel, 60 Ga. App. 79 (1) (2 S.E.2d 762). Here there was no evidence of any express agreement and in fact the plaintiff’s attorney testified: “Q. When this note was given and accepted, will you state whether or not anything was said about it being in settlement of the indebtedness? A. No, that note was not in settlement of anything. It merely stated the amount owed at that time. . . Q. Was anything said about it being evidence of the indebtedness? A. The entire purpose of it was to show the amount McAlpin owed at that time, after getting credit on his original indebtedness.”

Although the circumstantial evidence was equally susceptible to the inference that the plaintiff did or did not accept the note as payment, the only direct evidence was that the plaintiff took the note as evidencing the amount owed and not as payment, and had not received any payment on the amount in question. A finding of fact which may be inferred but is not demanded by

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circumstantial evidence will not support a verdict when by the positive and uncontradicted testimony of an unimpeached witness which is perfectly consistent with the circumstantial evidence, it is shown that no such fact exists. Myers v. Phillips, 197 Ga. 536 (29 S.E.2d 700).

The trial judge should have granted a directed verdict for the plaintiff on the plea of payment.

3. The plaintiff contends that the court erred in submitting the issue of “Regulation T” of the Federal Reserve Board to the jury since the evidence conclusively showed that the plaintiff had not acted in violation of the regulation.

On the trial of the case, at the time the plaintiff moved for a directed verdict it contended that the evidence showed without dispute that it had not wilfully violated the regulation. The trial judge decided that issue adversely to the plaintiff’s contention. Thus, despite the plaintiff’s argument that there was no violation of “Regulation T” as a matter of law we only consider the issue raised below, to wit: Did the plaintiff wilfully violate the regulation? See Crown Carpet Mills v. C. E. Goodroe Co., 108 Ga. App. 327 (1) (132 S.E.2d 824). For a discussion of this issue see A. M. Kidder Co. v. Clement A. Evans Co., 111 Ga. App. 484, supra.

One of the plaintiff’s agents in his testimony categorically denied that there was any intent to wilfully violate the statute. However, the evidence shows that a member of the Securities
Exchange Commission informed the agent of the plaintiff that it was in technical violation of the regulation. We also recognize the rule that everyone is presumed to know the law. Code § 102-105; Myers v. Atlantic Greyhound Lines, 52 Ga. App. 698, 702 (184 S.E. 414); Wilson v. State, 57 Ga. App. 839 (197 S.E. 48) Hughes v. State Bd. of Medical Examiners, 162 Ga. 246, 250
(134 S.E. 42). “What the person himself testifies is not necessarily conclusive, because the jury is authorized to apply the homely maxim that `actions speak louder than words,’ and from one’s acts they may determine that the intention was directly opposite from what he says it was. Motive is to be determined as much by what one does as by what he says.” Alexander v. State, 118 Ga. 26, 28 (44 S.E. 851). Thus, the law set out in Division 2

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regarding direct evidence as opposed to circumstantial evidence would not be applicable here. Instead, there would be a clear conflict of evidence which would be for the jury’s determination.

4. The plaintiff contends the court erred in excluding from evidence the defendant McAlpin’s affidavit which recited in detail the various schemes the plaintiff alleged in its petition. While conceding that the affidavit was inadmissible as to the defendants Garrett and Kidder, the plaintiff urges that the affidavit was admissible as an admission by the defendant McAlpin.

The record shows that the deposition of the defendant McAlpin which recited, word by word, every statement contained in the affidavit was admitted into evidence with the exception of certain portions which, upon objection, were excluded by the trial judge. The rule is, of course, well settled that where testimony or a document is offered as a whole, it is not error to disallow the same, where a portion of the proffered evidence is inadmissible. Tracy’s Auto Parts, Inc. v. Turner, 105 Ga. App. 418, 419 (124 S.E.2d 687); Stewart v. Avery, 38 Ga. App. 431, 433
(144 S.E. 218); Culpepper v. Bower, 203 Ga. 784, 789
(48 S.E.2d 369). Furthermore, this evidence was merely cumulative of that already adduced on the trial. Hence, no harm was occasioned by the refusal to allow the affidavit into evidence. Morris v. Johnson, 222 Ga. 76 (148 S.E.2d 392).

5. The last ground deals with the submission by the court to the jury, and instructions relating thereto, to the effect that if the plaintiff did not exercise ordinary care to discover the fraud and protect itself then it was not entitled to recover. The plaintiff argues that such charges as contained in the enumerations of error were inapplicable.

“Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence.” Doanes v. Nalley Chevrolet, Inc., 105 Ga. App. 846, 848 (125 S.E.2d 717). We recognize the rule that “while a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” Dorsey v. Green, 202 Ga. 655, 659
(44 S.E.2d 377); Daugert v. Holland Furnace Co., 107 Ga. App. 566, 570

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(130 S.E.2d 763). Furthermore, the plaintiff may introduce facts showing that he was prevented, by the fraud and deceit of the defendant, from ascertaining the truth. Martin v. North Ga. Lumber Co., 72 Ga. App. 778, 782 (35 S.E.2d 270); Arthur v. Brawner, 174 Ga. 477 (163 S.E. 604); Lawton v. Byck, 217 Ga. 676, 683 (124 S.E.2d 369).

However, in the above cited cases and in numerous others the cardinal rule is that: “Where an action is brought for false representations, the question whether the plaintiff could by the exercise of ordinary diligence have discovered the falsity of the representations is for the determination of the jury.” Summerour v. Pappa, 119 Ga. 1 (5) (45 S.E. 713); Scoggins v. Puckett, 219 Ga. 282, 283 (133 S.E.2d 17). When this case was before the court on the pleadings, A. M. Kidder Co. v. Clement A. Evans Co., 111 Ga. App. 484, supra, it was held that the question of whether the plaintiff had exercised diligence was for the jury. The evidence in this regard parallels the pleadings; thus, that rule would be applicable here.

Moreover, the evidence shows that the plaintiffs had before them certain facts which the jury might have found were sufficient to put them on notice, or made them aware, of possible fraud. Officers of the plaintiff’s corporation testified they knew certain of the defendant McAlpin’s checks given in payment to the plaintiff had been returned for insufficient funds. One officer of the corporation had stated: “Look, it’s a fool that doesn’t see the second warning. We don’t want to do business with anybody that gives us bad checks.” Nevertheless, the plaintiff continued to handle McAlpin’s account. There was also evidence that McAlpin’s methods and quantity of trading were unusual and that the plaintiff’s officers had been concerned and had met to consider his account but had taken no effective action to protect the corporation.

Under such circumstances there was no error in instructing the jury that the plaintiff must exercise diligence to protect itself and thereby submitting such issue for the jury’s determination Watkins v. Mertz, 83 Ga. App. 115, 121 (62 S.E.2d 744); Sundy v. Allgood, 96 Ga. App. 570, 579 (101 S.E.2d 125).

Judgment affirmed on main appeal; reversed on cross appeal. Jordan, P. J., and Deen, J., concur.

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