Atlanta Car Wash, Inc. v. Schwab, 20559
| Decision Date | 11 September 1959 |
| Docket Number | No. 20559,20559 |
| Citation | 215 Ga. 319,110 S.E.2d 341 |
| Parties | ATLANTA CAR WASH, INC. v. Ernest M. SCHWAB. |
| Court | Georgia Supreme Court |
Smith, Field, Doremus & Ringel, Sam. F. Lowe, Jr., Herbert A. Ringel, Atlanta, for plaintiff in error.
Carpenter, Karp & Mathews, Harold Karp, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Ernest M. Schwab brought his petition against Atlanta Car Wash, Incorporated, in which he alleged that he was induced by fraudulent misrepresentations of the agents of the defendant corporation as to the sales, receipts, and earnings of the business operated by the corporation to purchase the said business for a stated price; that the actual sales, receipts, and earnings of the business were much less than represented to him, and that, as a result, the business was worth much less than he paid for it. The petition alleged that the corporation was insolvent. The petition prayed for damages for the fraud; for an injunction restraining the corporation and its agents from transferring the purchase money note executed by the plaintiff in connection with the purchase of the business; and for an abatement in the purchase price in the amount of the damages found. A general demurrer to the petition was overruled. The exception here is to that judgment. Held:
1. It is contended by the plaintiff in error that the judgment of the court below should be reversed because fraud was not sufficiently alleged. There is no merit in this contention. The petition states a number of specific acts of fraud which it is alleged induced the defendant to agree to purchase the business at the price he paid for it. The cases cited and relied upon by the plaintiff in error to the effect that a general allegation of fraud without facts to support it is insufficient to raise any issue as to fraud are not applicable to the instant case because, here specific acts of fraud are alleged. If the plaintiff in error needed or desired additional information to prepare properly its case, a special demurrer calling for the information might have been interposed, but, as against a general demurrer, the petition was sufficient to allege fraud.
2. It is also contended that the general demurrer should have been sustained because the petition alleged that the defendant in error made at least two payments on the purchase-money note after he discovered the fraud, and that this action waived the fraud. In support of this position, the plaintiff in error cites many cases. All of those cases, with one exception which will be referred to later in this opinion, are cases in which it was sought to rescind the contract, and are not applicable to the facts in the instant case, which is a suit for damages for fraud. For a full discussion of the difference in the rules relating to waiver of fraud in these two types of cases, see Tuttle v. Stovall, 134 Ga. 325, 67 S.E. 806, 808. In a suit for...
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Gibson v. Home Folks Mobile Home Plaza, Inc.
...rescind the contract and seek restitution or he may affirm the contract and seek damages for the fraud. See Atlanta Car Wash, Inc. v. Schwab, 215 Ga. 319, 320, 110 S.E.2d 341 (1959); Tuttle v. Stovall, 134 Ga. 325, 328, 67 S.E. 806 (1910); Corbin v. Lee, 121 Ga. App. 784, 785 (1970); Americ......
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Little Sky, Inc. v. Rybka
...action was brought as a result of misappropriation of funds by Healthcare Recruiters International, Inc.'s president. 13. 215 Ga. 319, 321(2), 110 S.E.2d 341 (1959), citing Tuttle v. Stovall, 134 Ga. 325, 67 S.E. 806 (1910). 14. Accord Camp v. Hatcher, 119 Ga.App. 63, 166 S.E.2d 422 (1969).......
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SCM Corp. v. Thermo Structural Products, Inc.
...taken. Mere payment of a contractual obligation is not sufficient to constitute a waiver as a matter of law. Atlanta Car Wash, Inc. v. Schwab, 215 Ga. 319(2), 110 S.E.2d 341; Chestnut v. Al Means Ford, 113 Ga.App. 623, 626, 149 S.E.2d 410. 7. In a series of related enumerations, appellants ......
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Jones v. Miles
...after full knowledge of all material facts waives his right to a cause of action for common law fraud. Atlanta Car Wash v. Schwab, 215 Ga. 319, 320-21, 110 S.E.2d 341 (1959); Gem City Motors, Inc. v. Minton, 109 Ga.App. 842, 848-49, 137 S.E.2d 522 (1964). Here the possibility of waiver by e......