Blanchard v. West
| Citation | 156 S.E.2d 164,115 Ga.App. 814 |
| Decision Date | 22 May 1967 |
| Docket Number | No. 42703,No. 2,42703,2 |
| Parties | T. Wayne BLANCHARD v. John A. WEST |
| Court | Georgia Court of Appeals |
N. T. Anderson, Atlanta, for appellant.
Murphy, McFarland & Turoff, Martin McFarland, Atlanta, for appellee.
Syllabus Opinion by the Court
T. Wayne Blanchard commenced this action against John A. West in the Civil Court of Fulton County to recover damages arising from the sale of real estate and shares in a corporation to the defendant in 1963, such sale allegedly having been induced by the fraud and deceit of the defendant. The trial judge sustained a general demurrer to the petition, but the case remained pending in the court below until the trial judge eliminated a cross action, whereupon the plaintiff appealed. Held:
1. The defendant, as the appellee, contends that the plaintiff lost his right to appeal by failing to file a timely notice of appeal when the trial judge's order of May 20, 1966, sustaining a general demurrer to the petition became final upon the failure of the plaintiff to amend within the 15 days allowed by the trial judge for amendment. This contention would be valid but for the fact that by reason the defendant's cross action the case remained pending in the lower court, and an appeal by the plaintiff at that time would have been premature. Brown v. Elliott, 115 Ga.App. 89, 153 S.E.2d 665.
2. The petition in the present case shows, in essence, that the plaintiff and defendant were equal owners of Ace Bonding Company, Incorporated, which was in the business of supplying bail bonds, and that the defendant, by misrepresenting the value of the assets of the corporation and concealing information which the plaintiff in the exercise of due diligence could not discover, convinced the plaintiff that his shares were practically worthless, although his shares were at least worth $30,000, and induced the plaintiff to sell his shares, and his interest in certain real estate, for $30,000, which represented less than the plaintiff's interest in the real estate (although both knew this fact) on the basis that the shares in the corporation and no market value, and that he suffered a financial loss as a result of the sale.
The essential elements of an action for fraud and deceit, succinctly stated, are: (a) that the defendant made representations, (b) knowingly and with false design, (c) with intent to deceive and defraud, (d) that such representations related to existing or past facts, (e) without knowledge by the other party that such representations were false, (f) and that the other party relied on such representations and thereby suffered a loss. Code §§ 105-301, 105-302; Cosby v. Asher, 74 Ga.App. 884, 886, 41 S.E.2d 793. The petition must show that one who relied upon the representation of another used the means available to him, in the exercise of diligence, to discover the truth. Cosby v. Asher, supra, at p. 888, 41 S.E.2d 793. One failing to inform himself, but having equal opportunity of learning the truth, must suffer the consequences of his neglect. Dortic v. Dugas, 55 Ga. 484, 496. Also, see Hunt v. Hardwick Company, 68 Ga. 100, 104. As against attack by...
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DeLong Equipment Co. v. Washington Mills Abrasive Co., 88-8664
...The court found no justifiable reliance, because DeLong was aware of the falsity of the representation, citing Blanchard v. West, 115 Ga.App. 814, 156 S.E.2d 164, 166 (1967); Gaultney v. Windham, 99 Ga.App. 800, 109 S.E.2d 914 (1959). Those cases stand for the proposition that a fraud plain......
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