
    16346.
    Nix et al. v. Citizens Bank of Moultrie.
    Bills and Notes, 8 C. J. p. 1063, n. 70.
    Counties, 15 C. J. p. 478, n. 31; p. 666, n. 79 New.
    Evidence, 23 C. J. p. 50, n. 63.
    Eraud, 26 C. J. p. 1106, n. 18.
    New Trial, 29 Cye. p. 833, n. 61.
   Bell, J.

The bank sued the County of Rockdale on a negotiable promissory note executed by the county commissioners in behalf of the county, payable to another person or order, which the plaintiff had purchased before maturity. In Citizens Bank of Moultrie v. Rockdale County, 152 Ga. 711 (111 S. E. 434), the petition was held good as against demurrer. The county, however, prevailed upon the final trial of the case, and the verdict and judgment in its favor was affirmed by operation of law because the Justices of the Supreme Court were equally divided. 156 Ga. 500 (119 S. E. 322). Eor a description of the note and a statement of the recitals therein and a copy of the resolution by the county commissioners, which was attached thereto, see 152 Ga. 712, 713 (111 S. E. 434). As to the contents of a further exhibit which was attached to the note at the time the plaintiff purchased it, see 156 Ga. 509, 525 (119 S. E. 322). The bank, after failing in its effort to recover against the county, brought against the county commissioners as individuals the present action for fraud. The latter suit resulted in a verdict for the defendants. The court granted the plaintiff a new trial, and the defendants excepted. Field:

1. Even though the defendants may have been exercising a judicial or quasi-judicial function, when, as commissioners, they passed the resolution determining the existence of a casual deficiency, and might not be held liable because their conclusion as to this matter was unfounded and false, they were not acting in such capacity when thereafter they inserted in the note executed by them a false recital that it was within the amount which the county could borrow to meet such casual deficiency. To any person relying and having a right to rely on the truth of such recitals and damaged thereby they would be liable. 23 A. & E. Enc. Law (2d ed.), 376; Robinson v. Rohr, 73 Wis. 436 (40 N. W. 668, 2 L. R. A. 366, 9 Am. St. Rep. 810).

2. Even assuming that under the true law the plaintiff bank should have recovered against the county, it can not for this reason be said that the plaintiff was not damaged by the defendants’ misrepresentation. The bank was not obliged to sue the county in the first instance. It could have sued either the county or the present defendants, or could have sued both in separate actions. “A plaintiff may pursue any number of consistent concurrent remedies against different persons until he obtains a satisfaction from some of them.” Civil Code (1910), § 5522.

3. The fact that, in addition to the certified copy of the resolution of the board of commissioners there was attached a financial statement of the county, an examination of which might have led to a discovery that the indebtedness of which the note formed a part was in excess of the amount which the commissioners had the power to borrow, would not, as a matter of law, preclude a recovery against these defendants. Whether, under these circumstances, the plaintiff could have discovered the falsity of the representations by the exercise of proper diligence would be a jury'question. Knox v. Aspinwall, 62 U. S. 539 (16 L. ed. 208); Briesenick v. Dimond, 33 Ga. App. 394 (126 S. E. 306), and cases cited. See also the opinion by Mr. Chief Justice Russell in 156 Ga. 500 (119 S. E. 322). This is true irrespective of whether the same rule might obtain in an action against the county. See, in this connection, the opinion of Mr. Justice Hines in the case just cited, and Baker v. Rockdale County, 161 Ga. 245 (130 S. E. 684).

4. Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or made by mistake and innocently and acted on by the opposite party, constitute legal fraud. Civil Code (1910), § 4623; Allison v. Nunn, 34 Ga. App. 561 (130 S. E. 364).

5. Under the facts of this case it is immaterial that the defendants did not intend to injure the plaintiff or any one. It is also immaterial that they did not • know that the plaintiff would purchase the note. Mashburn v. Dannenberg Co., 117 Ga. 567 (16) (44 S. E. 97) ; Young v. Hall, 4 Ga. 95 (4).

6. The plaintiff’s cashier, who testified as a witness in its behalf, was not a party, and the rule that the testimony of a party given in his own behalf is to be construed most strongly against him was not applicable to the testimony of this witness. Reaves v. Columbus &c. Co., 32 Ga. App. 140 (2) (122 S. E. 824).

Decided February 16, 1926.

Deceit; from Kockdale superior court—Judge Hutcheson. February 21, 1925.

Application for certiorari was denied by the Supreme Court.

J. B. Irwin, J. II. McCalla, Jones, Parle & Johnston, for plaintiffs in error.

James L. Dowling, Erie B. Askew, contra.

7. The jury could have found that the plaintiff relied upon the representation, and had a right to rely upon it, and was not negligent in failing to ascertain the truth, and that it was damaged in the sum claimed.

8. Since the verdict in favor of the defendants, under the law and the evidence, was not demanded, the court did not err in granting a first new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.  