
    
      5273.
    
    Johnson & Young v. Kelley.
    Decided January 20, 1914.
    Rehearing denied February 4, 1914.
    Appeal; from Fulton superior court — Judge Ellis. . August 16, 1913.
   Russell, C. J.

It is not alleged that any error of law was committed on the trial, either in rulings upon testimony or in the charge of the court. The motion for a new trial, which was overruled by the trial judge, rests merely upon the issue as to whether the verdict was so without evidence to support it as to be contrary to law. The defendants admitted a prima facie case and the justness of. the plaintiff's demand, and assumed the burden of proving a counter-claim of a larger amount. Under the record, the defendants’ right to recover upon the counter-claim was placed by them wholly upon the validity of a written contract, and this contract, the plaintiff testified, was obtained by fraud successfully perpetrated upon him, as a result of justifiable, though misplaced, confidence in his agents. And though the evidence of fraud, in one view of the case, may be considered somewhat weak, it was legally sufficient to authorize the jury to disregard the written contract upon which tin-defendants’ case rested. The evidence was sufficient to authorize the verdict, and the discretion of the trial judge in refusing a new trial was not abused. Judgment affirmed.

Roan, J., disqualified.

Etheridge & Etheridge, for plaintiffs in error.

J. F. Golightly, contra.  