Brooke v. Cole

• Citation: 33 S.E. 849,108 Ga. 251
• Parties: BROOKE. v. COLE.
• Decision Date: 22 July 1899
• Court: Supreme Court of Georgia

33 S.E. 849

108 Ga. 251

BROOKE.

v.COLE.

Supreme Court of Georgia.

July 22, 1899.

DECEIT—EVIDENCE.

An action of deceit cannot be supported by proof of damages resulting from the breach of a warranty, either express or implied. This is so for the reason that the action is one ex delicto, and such proof relates to a cause of action arising ex contractu.

(Syllabus by the Court.)

Error from city court of Atlanta; John D. Berry, Judge.

Action by J. R. Cole against G. W. Brooke. Judgment for plaintiff. Defendant brings error. Reversed.

Alex & Victor Smith, for plaintiff in error.

T. E. Patterson, Dorsey, Brewster & Howell, and Arthur Heyman, for defendant in error.

LITTLE, J. An action was brought by Cole against Brooke to recover a judgment for the sum of $180. The petition makes the following allegations: Brooke induced petitioner to purchase 450 bushels of milling corn by falsely and fraudulently representing the corn to be white, wholesome, and suitable for milling purposes; that petitioner, relying on the representations of Brooke or his agent, purchased the corn for the sum of $180. It alleges that the corn was not of the quality represented, but was unsound, rotten, and unwholesome, entirely worthless, and of no value whatever, all of which Brooke well knew, but deceived petitioner in the sale of the corn, to his damage in the sum of $540, for which he prays judgment. It further alleges that he was damaged the purchase price of the corn, to wit, $180, besides special damages in the sum of $360. Amendments were made to the petition, but they are not necessary to be here set out. In his answer the defendant admitted the sale and delivery of the corn for the price of $157.82, and denied the other allegations ofthe petition. The jury returned a verdict In favor of the plaintiff for $157.50, besides interest. Defendant made a motion for a new trial on several grounds. The motion was overruled, and he excepted.

As will be seen by reference to the petition, the right of the plaintiff to recover is based on three propositions: (1) That, to Induce the purchase of the corn, the defendant falsely and fraudulently represented it to be wholesome and suitable for milling purposes; (2) that, relying on these representations, the plaintiff purchased the corn; (3) that the representations were false, and such falsity known to the defendant, who deceived the plaintiff in the sale. These allegations make the action one to recover damages, in the nature of a writ of deceit; and, to recover, It is necessary that all these allegations shall not only have been alleged, but be proven. An action of deceit charges the commission of a tort. Bates v. Forsyth, 69 Ga. 365; Cheney v. Powell, 88 Ga. 629, 15 S. E. 750. To recover in such an action, it must appear that a representation was made, and that it was false, to the knowledge of the party making it, or made with the intention to deceive the purchaser. Wooten v. Calahan, 32 Ga. 382. When, in such an action, there were no misrepresentations to induce the plaintiff to enter into the contract, and no misplaced confidence on the part of the plaintiff, and the transaction being otherwise free from fraud, a nonsuit should be granted. Morris v....