Adamson v. Maddox, 41159
| Citation | 142 S.E.2d 313,111 Ga.App. 533 |
| Decision Date | 06 April 1965 |
| Docket Number | No. 3,No. 41159,41159,3 |
| Parties | E. L. ADAMSON, Jr. v. Frank MADDOX |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. An order sustaining a general demurrer to a petition and allowing time for amendment is not a final order subject to review.
2. Inconsistent and contradictory averments that plaintiff was damaged as a result of the 'tieing up' of land by an invalid contract for sale of the land, state no right of recovery for fraud.
3. One charged with knowledge of the legal effect of unenforceable promises has no right to rely upon them or to recover for fraud in their utterance.
E. L. Adamson, Jr. brought this action, which sounds in tort for fraud and deceit, to recover damages against Frank Maddox as defendant. To plaintiff's petition defendant filed general and special demurrers. After a hearing on the demurrers the trial judge issued an order sustaining the general demurrer and granting plaintiff leave to amend within thirty days. Plaintiff amended his petition within the allotted time, and afterwards defendant renewed his demurrers to the amendment. After a further hearing the trial judge sustained defendant's renewed general demurrer.
Plaintiff excepts to the judgments of the trial court sustaining the general demurrer to the original petition and the renewed general demurrer to the petition as amended.
The amended petition shows the following facts: Plaintiff is a licensed real estate broker. Prior to March 26, 1963, he represented the owner of certain property as agent for sale of the property, and contacted defendant as a prospective buyer. Defendant stated that he was interested in buying the property and requested plaintiff to prepare a contract for sale of the property. After the contract was prepared, defendant refused to execute it. Defendant himself then prepared a different contract 'as a fraudulent scheme against this plaintiff.' The writing prepared by defendant, attached to the petition as an exhibit, shows that it was executed by the defendant and that on April 3, 1963 it was signed 'Robert H. Jones (Seller) By /s/ E. L. Adamson, Jr. (Broker).' 'The defendant herein purposely omitted the said proper description of the said lots, in an effort to tie up the property and prevent your petitioner and the seller from proceeding further with any other sale, and that as a result of the defendant's fraud perpetrated on him, as broker, did tie the said property up and prevent them from proceeding with any other sale, and * * * he did this with the intent of defrauding this plaintiff out of $13,000.00' (plaintiff's commission) '* * * Petitioner shows that the purchaser refused to complete said transaction, for no valid reason, and has failed and refused to pay the commission in accordance with the terms of the said contract.' Defendant 'refused to permit this plaintiff to show or sell the lots for a period of ten months, except that he instructed this plaintiff to sell all of the said lots which the defendant had tied up, for the sum of $200,000.00.' Defendant 'prevented any of the lots to be sold * * * refused to give a quit-claim deed, stating that he was going to close the transaction * * * perpetrated a fraud on this plaintiff * * * in that he did not have any intention of going through with the deal at any time, and * * * prepared his own contract for the specific purpose of knocking this plaintiff out of his commission from any other persons * * * Defendant herein did on six different occasions agree that he would go ahead and close the transaction * * * and when it would come time to close, the defendant would * * * refuse to close * * *.'
Victor Higgins, Barrett & Hayes, Mose Hayes, Atlanta, for plaintiff in error.
Grant, Spears & Duckworth, William G. Grant, Atlanta, Hodges & Oliver, G. Robert Oliver, Jonesboro, for defendant in error.
1. As the plaintiff amended his petition to meet the order sustaining the general demurrer to the original petition and allowing him time within which to amend the petition, he thereby acquiesced in the order, and cannot now be heard to object to it. Sherling v. Continental Trust Co., 175 Ga. 672(1), 165 S.E. 560; Stainback v. Dunn, 53 Ga.App. 464, 465(3), 186 S.E. 220. The holdings of these cases have been reinstated by the amendment to Code Ann. § 81-1001 found in Ga.Laws 1962, p. 682. If plaintiff desired to stand upon the petition as filed, he should have refused to amend. This court will not consider plaintiff's assignment of error upon the trial court's order sustaining the demurrer to the original petition.
2. Plaintiff admits that the contract prepared by defendant was invalid because of the insufficient description of the land that was the subject matter of the contract. He even bases his action upon the premise, claiming that the property was 'tied up' by an invalid contract for its sale and that he was thus deprived of the commission that he expected to receive for selling the property.
The contract is also invalid for another reason. The petition avers that plaintiff was agent for the owner of the land 'prior to March 26, 1963,' while the...
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...with knowledge of the legal effect of an unenforceable agreement, as a matter of law, had no right to rely thereon. Adamson v. Maddox, 111 Ga.App. 533, 142 S.E.2d 313 (1965). The plaintiff's second claim for relief denominated 'contract,' alleged in substance: The trustees' promise, the pla......
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