Braselton Bros., Inc. v. Better Maid Dairy Products, Inc.

• Decision Date: 08 September 1966
• Docket Number: No. 23498,23498
• Citation: 222 Ga. 472,150 S.E.2d 620
• Parties: BRASELTON BROTHERS, INC. v. BETTER MAID DAIRY PRODUCTS, INC.
• Court: Georgia Supreme Court

Page 620

150 S.E.2d 620

222 Ga. 472

BRASELTON BROTHERS, INC. v. BETTER MAID DAIRY PRODUCTS, INC.

No. 23498.

Supreme Court of Georgia.

Sept. 8, 1966.

Rehearing Denied Sept. 22, 1966.

Syllabus by the Court

Ordinarily the question of whether a party complaining of fraud and deceit has used proper diligence to discover such fraud and deceit is a question for determination by the jury.

Telford, Wayne & Greer, Jeff C. Wayne, Gainesville, for plaintiff in error.

Robinson, Thompson, Buice & Harben, B. Carl Buice, Gainesville, Fortson, Bentley & Griffin, Edwin Fortson, Athens, for defendant in error.

COOK, Justice.

Braselton Brothers, Inc., brought an action against James Saxton and Better Maid Dairy Products, Inc., charging fraud and deceit by Saxton, agent of Better Maid Dairy Products, Inc. Braselton Brothers, Inc., appealed to the Court of Appeals from the judgment of the trial judge sustaining the general demurrer of Better Maid Dairy Products, Inc., to the petition as amended. The Court of Appeals held that the petition alleged fraud of the agent for which the principal might be held liable; but further held that it alleged facts which showed as a matter of law that the plaintiff did not use diligence to discover the fraud, and that the petition therefore failed to allege a cause of action for fraud and deceit. Braselton Brothers, Inc. v. Better Maid Dairy Products, Inc., 113 Ga.App. 382, 148 S.E.2d 71. Braselton Brothers, Inc., applied to this court for writ of certiorari, assigning error on the ruling of the Court of Appeals that the pleadings showed a failure of the plaintiff to use diligence in discovering the fraud.

The petition alleged that: For a specified period of almost two years Better Maid Dairy Products, Inc., by and through its named general manager and its agent, James Saxton, 'verbally assumed complete and full responsibility for having available in a large cooler, owned by and located in plaintiff's store' sufficient dairy products of Better Maid Dairy Products, Inc., to furnish the plaintiff's customers with such products. No person except the agents, servants, and employees of Better Maid Dairy Products, Inc., including Saxton, 'had any authority to place merchandise sold by * * * Better Maid Dairy Products, Inc., or any other dairy products, in said cooler,' and Better Maid Dairy Products, Inc., 'was solely responsible for stocking said cooler with merchandise and products sold by plaintiff to its customers.' Better Maid Dairy Products, Inc., furnished Saxton books of invoices, receipts, and delivery forms, to be filled out by him to show the quantity delivered, and then to be used in collecting from the plaintiff for dairy products placed in the cooler of the plaintiff for sale to its retail customers by presenting these filled out invoices, receipts, and delivery forms to the plaintiff's office for payment. The plaintiff's cooler had the capacity to hold specified dairy products, for which the plaintiff was obligated to pay only $18.94. During the period alleged, Saxton daily presented invoices in excess of $18.94. An itemized list is attached to the petition, showing the invoices presented to the plaintiff on specified dates, and the payments made thereon. This list shows the maximum amount of products received on each date ($18.94), and the payments made above this amount, which overpayments total $9,739.93. During the same period Saxton presented to the plaintiff at its office for payment receipts and...