Central Chevrolet, Inc. v. Campbell

• Citation: 198 S.E.2d 362,129 Ga.App. 30
• Decision Date: 13 April 1973
• Docket Number: No. 48013,No. 1,48013,1
• Parties: CENTRAL CHEVROLET, INC. v. Gerry D. CAMPBELL
• Court: Georgia Court of Appeals

Page 362

198 S.E.2d 362

129 Ga.App. 30

CENTRAL CHEVROLET, INC. v. Gerry D. CAMPBELL.

No. 48013.

Court of Appeals of Georgia, Division No. 1.

April 13, 1973.

Rehearing Denied May 2, 1973.

Wilkinson, Nance & Wittner, A. Mims Wilkinson, Jr., Atlanta, for appellant.

Kyle Yancey, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

1. A sworn statement signed by an agent of the vendor stating: 'This is to certify that Gerry D. Campbell has purchased from Central Chevrolet, Inc., 2930 Peachtree Road, Atlanta 5, Georgia, a 1967 Corvette serial no. 194677S118946' is an express warranty, not as to the condition but as to the identity of the goods sold, to the effect that the subject matter of the sale is a Corvette automobile of the year model stated, within the meaning of printed statements on the purchase order reading: 'It is agreed and understood that all used cars are sold 'As Is' unless a written warranty is issued. We cannot guarantee speedometer mileage on any used car' and 'Any used motor vehicle sold to Purchaser by Dealer under this Order is sold at the time of delivery by Dealer without any guarantee or warranty, expressed or implied, including any implied warranty of merchantability or fitness for a particular purpose, as to its condition or the condition of any part thereof except as may be otherwise specifically provided in writing on the face of this Order or in a separate writing furnished to Purchaser by Dealer.'

2. 'A suit for damages by the defrauded party for the fraud committed is not a suit for the violation of the contract, but is one for a tort and involves affirmance of the contract, and he may keep the fruits of the contract and maintain an action for the damages suffered by reason of the fraud.' Tuttle v. Stovall, 134 Ga. 325, 329, 67 S.E. 806, 808, 20 Ann.Cas. 168; Gem City Motors, Inc. v. Minton, 109 Ga.App. 842(1c), 137 S.E.2d 522.

3. In an action sounding in tort for damages resulting from fraudulent misrepresentation, the gist of the action is the deceit intended, and it is indispensable to recovery that the scienter be both alleged and proved. Leatherwood v. Boomershine Motors, Inc., 53 Ga.App. 592, 186 S.E. 897; Code § 105-302.

4. Fraud, being itself subtle, may be proved by slight circumstances, and where basic representations of the vendor which the vendee acted upon to his injury are proved it is ordinarily a jury question whether the false statements were made with intent to deceive or recklessly without any attempt to ascertain their truth or, innocently. Central Chevrolet, Inc. v. Register, 116 Ga.App. 598, 158 S.E.2d 270.

5. Campbell sued the defendant automobile dealer for damages resulting from alleged fraudulent misrepresentations. The facts, construed in favor of a verdict for plaintiff for actual and punitive damages are as follows: Campbell and another went to the defendant's car lot and each bought a used automobile represented as a 1967 Corvette, and so stated in both the sales order and the accompanying certificate. The plaintiff's automobile was in fact a 1963 Corvette some of the external parts of which had been changed for 1967 parts. The interior was designed differ ently in many respects from a 1967 automobile, and the serial and motor numbers could only refer to the 1963 model. There were facts which experienced automobile men are aware of but which the plaintiff had no experience with and did not know. Eventually...