Brooks v. Matthews

• Decision Date: 19 April 1887
• Citation: 3 S.E. 627,78 Ga. 739
• Parties: BROOKS and others v. MATTHEWS.
• Court: Georgia Supreme Court

3 S.E. 627

78 Ga. 739

BROOKS and others v. MATTHEWS.

Supreme Court of Georgia

April 19, 1887

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 94 S.E.2d 696

Appeal from superior court, Pike county; BOYNTON, Judge.

E. F. Dupree, W. J. Iverson, and John I. Hall, for plaintiff in error.

J. A Hunt and A. M. Speer, for defendant.

BLANDFORD J.

Matthews brought his action against R. M. & J. W. Brooks upon two promissory notes, aggregating $165. These notes contained a mortgage on a certain mule, in which it was stated that the notes were given for the purchase price of the mule. It also contained a waiver of homestead, and this stipulation "The mule being bought by me as a weak-eyed mule, and not warranted in any particular whatever." To these notes the defendant pleaded total failure of consideration furthermore, that he had tendered the mule back to the plaintiff, who had refused to take him. He also alleged that when the notes were read over to him by the plaintiff he left out the latter part, viz.: "The mule being bought by me as a weak-eyed mule, and not warranted in any particular whatever." The defendant alleged that, on the contrary the plaintiff has guarantied the mule to be sound otherwise than his weak eyes. This plea, and the amendment to it, were demurred to by the plaintiff. The court sustained the demurrer, and dismissed the plea, and this is one of the errors alleged here.

1. We think that the allegations of this plea make a case of fraud on the part of the plaintiff. According to these allegations he read the notes to the defendant, except that part which stated that the mule was a weak-eyed mule, "and not warranted in any particular whatever;" whereas the plea alleges the truth was that the mule was warranted in every particular except that it was a weak-eyed mule. It was further alleged that the mule proved to be utterly worthless. It is well settled by our Code that any misrepresentation, act, or artifice intended to deceive, and which does deceive, another to his injury, is a fraud for which the party is entitled to a remedy, either in equity or in law. This was an actual fraud on the part of this plaintiff. But it is insisted that the defendant was guilty of negligence; that he could have discovered this fraud before he signed the notes, if he had read them, for he could [3 S.E. 628.] read. To this the defendant may reply: "You have no right to take that position, for the reason that your own...