Ditchburn v. Caples

Mr. Justice McCamant delivered the opinion of the court. 1. The evidence in this case is conflicting. We are bound by the findings of the Circuit Court in so far as [648] they are supported by any evidence. The court found that plaintiff sold to the defendants ten or twelve wagons, an electric motor, a wood-saw, a conveyor and other personal property which he did not own; that plaintiff’s representations that he owned these articles were false and that defendants purchased in reliance on them; also that the personal property so sold to defendants was taken from them by the true owner. In all of these respects the findings are supported by evidence. 2. These findings, however, are insufficient to support a judgment for defendants. If defendants are to recoup against plaintiff their damages arising from plaintiff’s failure of title to the wagons and other articles, it is necessary for them to prove the value of this personal property which they lost: Hornsby v. Butts, 85 Ga. 694 (11 S. E. 846); Otis v. Holmes, 109 Ga. 775, 777 (35 S. E. 119); Clegg-Ray Co. v. Indiana Scale and Truck Co., 125 Ga. 558 (54 S. E. 538); Krauss v. Flournoy, 7 Ga. App. 322 (66 S. E. 805); Willis v. Bullitt, 22 Tex. 330; Baldwin v. Banks, 20 Ill. 48, 51 (71 Am. Dec. 249); Honeyman v. Jarvis, 64 Ill. 366, 368; Farris v. Alfred, 171 Ill. App. 172. No such testimony is found in the record and there is no evidence, therefore, to support the court’s finding that “there was no consideration for said promissory note. ’ ’ It satisfactorily appears that the assets which defendants secured were worth less than the amount which they paid plaintiff, but this evidence does not entitle them to relief. They may have made an improvident bargain. The judgment is reversed and a new trial is ordered. Reversed and Remanded. Rehearing Denied. Mr. Justice Moore, Mr. Justice Bean and Mr. Justice Benson concur.