Alpha Kappa Psi Bldg. Corp. v. Kennedy, 35194

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: TOWNSEND; GARDNER, P. J., and CARLISLE
• Citation: 83 S.E.2d 580,90 Ga.App. 587
• Parties: ALPHA KAPPA PSI BUILDING CORP. v. KENNEDY
• Docket Number: No. 35194,No. 2,35194,2
• Decision Date: 07 July 1954

Page 580

83 S.E.2d 580 90 Ga.App. 587 ALPHA KAPPA PSI BUILDING CORP.
v.
KENNEDY. No. 35194. Court of Appeals of Georgia, Division No. 2. July 7, 1954.
Rehearing Denied July 27, 1954.

Page 581

Syllabus by the Court.

1. Where, as here, a contract contains a provision that 'No representation, promise, or inducement not included in this contract shall be binding on any party hereto,' and there is nothing in the evidence to indicate that the plaintiff was induced to sign the contract by reason of any fraud, accident, or mistake which precluded him from knowing the terms thereof, such provision constitutes an agreement not to rely upon representations, and shows that the buyer entered into the contract as a result of his own knowledge and investigation and did not rely upon the representations of the opposite party. One of the essential elements of an action in tort for damages for fraud in procuring the contract being that the party defrauded relied upon the representations of the opposite party and was thereby deceived, a purchaser who relies upon his own investigation rather that the representations of the other party is not deceived by such representations, and is therefore precluded from setting up fraud in procuring the contract through such misrepresentations. It follows, therefore, that where, as here, the proposed vendee is precluded by a provision in the contract of purchase from relying upon misrepresentations made by the proposed vendor or his agent, such proposed vendee is conclusively presumed to have relied on his own investigation before executing the contract. The evidence here demanded a finding in favor of the defendant, and the trial court did not err in directing the verdict.

2. Special grounds of the amended motion for new trial complaining of the admission of evidence, which evidence, in any event, would have no bearing upon the outcome of the case, are not passed upon, since any error alleged therein would be harmless to the movant.

[90 Ga.App. 588] Alpha Kappa Psi Building Corporation filed an action in the Civil Court of Fulton County against F. R. Kennedy, a real estate broker, seeking damages for fraud in the procurement of a contract of sale of real estate. The petition alleges in substance: that the defendant, acting as agent of the vendor, H. L. Richardson showed the property involved to representatives of the plaintiff; that the defendant knew the plaintiff needed for fraternal purposes a private lake large enough to accommodate a large number of members and guests; that the defendant induced the plaintiff to enter into the contract of sale by making the following fraudulent misrepresentations which he in fact knew to be untrue: that the lake was at least 10 acres, when in fact it was only 7 1/2 acres; that only about one-eighth of an acre of the lake was on the lands of another person, when in fact one-fourth of its total surface was on such other lands; that the depth of the lake at the boundary line was not over two feet, so that, by lowering the lake two feet, all of it would be within the tract to be purchased, when in fact the depth at such boundary line was between 11 and 12 feet; that the boundary line across the headwaters of the lake was misrepresented to be a line about 400 feet south of the actual line, the location of which he well knew, so that the plaintiff was misled into believing only a small swampy area was over the line, whereas in fact the line crossed the main body of the lake and not just the headwaters (the effect of all of which was to prevent the plaintiff from making the lake into a private lake as it desired); that these knowing and wilful...