Butts v. Groover

• Decision Date: 04 October 1941
• Docket Number: 29004.
• Citation: 16 S.E.2d 894,66 Ga.App. 20
• Parties: BUTTS v. GROOVER.
• Court: Georgia Court of Appeals

16 S.E.2d 894

66 Ga.App. 20

BUTTS v. GROOVER.

No. 29004.

Court of Appeals of Georgia, Division No. 2.

October 4, 1941

Edwin G. Barham, of Toccoa, for plaintiff in error.

Geo L. & Carter Goode, of Toccoa, for defendant in error.

SUTTON Judge.

1. "One who has been fraudulently induced to purchase property may, after discovering the fraud, affirm the contract and sue for damages resulting from the fraud, or he may rescind the contract for fraud and, after offering to restore, recover the purchase price which he has paid." Dunn v. Citizens' & Southern Co., 47 Ga.App. 600(1), 171 S.E. 170, 171; Barfield v Farkas, 40 Ga.App. 559(1), 150 S.E. 600; Tuttle v Stovall, 134 Ga. 325, 67 S.E. 806, 20 Ann.Cas. 168.

2. "Since fraud, such as will afford relief against a contract, must have been acted upon by the complaining party to his injury, it follows that, where the agreement has been reduced to writing and the writing stipulates that it contains the entire agreement, and that the seller is not to be bound by any sort of warranty, either express or implied the defendant in a suit on such a purchase-money note will not be permitted, while affirming the contract, to plead damages by way of failure of consideration by showing that the seller had made false and fraudulent representations with reference to the subject-matter of the sale, unless he goes further and shows that he had been fraudulently induced and deceived into signing the note under a misapprehension as to its contents. Purser v. Rountree [& McAfee], 142 Ga. 836, 83 S.E. 958; Holt & Duggan Co. v. Clary, 146 Ga. 46, 90 S.E. 381; Harrell v. Holman, 21 Ga.App. 159, 93 S.E. 1021." Barfield v. Farkas, supra, head note 4 [40 Ga.App. 559, 150 S.E. 601].

3. A statement in a chattel mortgage given by the purchaser to secure a note executed and delivered to the seller of an automobile truck in part payment thereof, that "No warranties express or implied, and no representations, promises, or statements have been made by seller unless indorsed hereon in writing," must be taken as a waiver of all defects in the automobile truck, latent or patent, and as equivalent to a waiver of any and all warranties, express or implied, or any representations as to the mechanical condition of the automobile truck. "Under the terms of such an agreement; which has not been fraudulently procured through artful means or deceitful practices with reference to the contents thereof, 'but which has been knowingly entered upon, there is a conclusive presumption that all previous and contemporary negotiations, however conflicting, have been merged into the written instrument. Floyd v. Woods, 110 Ga. 850, 853, 36 S.E. 225'; Washington [& L.] R. Co. v. Southern Iron, etc., Co., 28 Ga.App. 684 (1), 112 S.E. 905, 906." Morgan v. Williams, 46 Ga.App. 774(1), 169 S.E. 211, 212.

4. In such a case the purchaser will not be heard to say that he did not purchase the property on his own judgment but on the false and fraudulent representations of the seller pending the negotiations leading up to the sale. Morgan v. Williams supra, head note 2, etc.; Widincamp v. Patterson, 33 Ga.App. 483...