243 F.2d 725 (5th Cir. 1957), 16414, Cohen v. Pullman Co.

Docket Nº:16414.
Citation:243 F.2d 725
Party Name:I. T. COHEN, Appellant, v. The PULLMAN COMPANY, Appellee.
Case Date:April 22, 1957
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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243 F.2d 725 (5th Cir. 1957)

I. T. COHEN, Appellant,



No. 16414.

United States Court of Appeals, Fifth Circuit.

April 22, 1957

Joshua Jacobs, Cohen, Roberts & Kohler, Atlanta, Ga., for appellant.

Hugh Howell, Sr., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

The suit was in fraud and deceit for the recovery of $12, 500, alleged to have been paid by plaintiff as commissions in reliance upon defendant's verbal promise to sell plaintiff 28 1/2 acres in Atlanta, Georgia, with the buildings, structures, etc. thereon, together with $25, 000 exemplary damages.

The claim was that the promise was made by defendant with the fraudulent purpose and intention not to comply with it, and that, for having so made it, defendant is liable to plaintiff for the sum sued for.

The defenses, subject to a motion to strike the pleading and a motion for summary judgment, because on its face the petition shows that the claimed agreement is in violation of the statute of frauds in Georgia, Sec. 20-401, 1 were denials of the facts pleaded and the claims made.

Thereafter, plaintiff having, at the suggestion of the court, made a statement in writing:

'1. Plaintiff states that there are no written instrument, documents, memoranda or other writings which can prove the terms of an agreement between plaintiff and defendant for the sale of real property, which would be necessary to satisfy the Statute of Frauds, if this were an action for the enforcement of such a contract.

'2. Plaintiff further states that this is a tort action for fraud and deceit, based on misrepresentation by defendant of a fact, which misrepresentation was relied on by plaintiff to his detriment. Plaintiff is not relying on a contract action, and is not claiming that he could recover on a breach of contract action.

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'3. Plaintiff contends that the Statute of Frauds has no application to his tort cause of action based on fraud and deceit, and that evidence in writing of any contract is not a prerequisite thereto.

'4. Plaintiff further contends that as a matter of law, defendant who made a promise with no intention of keeping it at the time it was made is liable to plaintiff for damages caused by plaintiff's reliance, and that the Statute of Frauds is inapplicable thereto.'

and defendant having replied thereto, the district judge, for the reasons stated by him, 2 granted defendant's motion for summary judgment, and plaintiff has appealed.

Pointing out that he is not suing in contract for damages for the breach of an oral contract to sell real estate, but in tort for the damages sustained by him as a result of his reliance on appellee's fraud and deceit in making a promise to sell which when he made it he did not intend to perform, and, citing Georgia cases in claimed support, appellant insists that under the law of Georgia, where the transaction occurred, recovery may be had for damages resulting from reliance on such a promise, though the Statute of Frauds would prevent a suit on the contract for its breach.

Appellee, vigorously opposing this claim, insists that the Georgia law is not so written and that what appellant is undertaking to do is in effect to create an additional exception to those set out in the Georgia statute.

Both parties agree that there is no Georgia case dealing, on the precise facts, with the precise question presented here:

'Can appellant maintain an action for fraud and deceit to recover the damages sustained by him as a result of his reliance upon appellee's oral agreement to sell real property upon proof that appellee had no intention to perform at the time it made the agreement?'

Both agree, too, that for the answer resort must be had to the general principles laid down by the Georgia courts in construing and applying the Georgia Statute of Frauds.

Appellant, citing Coral Gables Corp. v. Hamilton, 168 Ga. 182, 147 S.E. 494, and Floyd v. Morgan, 62 Ga.App. 711, 9 S.E.2d 717, holding that, while it is true that generally there is no liability for a false promissory statement, it is also true that when a promise is made with no intention

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