Cheney v. Powell

• Citation: 15 S.E. 750,88 Ga. 629
• Parties: Cheney et al. v. Powell.
• Decision Date: 15 February 1892
• Court: Supreme Court of Georgia

15 S.E. 750

88 Ga. 629

Cheney et al.

v.Powell.

Supreme Court of Georgia.

Feb. 15, 1892.

Deceit—Declaration—Amendment.

A declaration alleging that S., C, L., and L. (L. and L. having the same name, one of them being solvent and the other insolvent,) combined to defraud plaintiff by having insolvent L. execute a lease to S. and C, covering premises to which none of them had title, and then, by means of false representations, to sell the lease to plaintiff, making him believe it was executed by the solvent Li., the declaration further alleging that the fraud was successfully accomplished, and the plaintiff thereby damaged sets forth a cause of action against all the conspirators for the tort. Although the declaration does not expressly allege that the plaintiff was deceived by the fraudulent misrepresentations of the defendants, this was plainly implied, and the declaration is amendable so as to allege the fact expressly. (Syllabus by the Court.)

Error from superior court, Laurens county; W. F. Jenkins, Judge.

Action by W. L. Powell against B. B. Cheney and others for damages for having been fraudulently induced to enter into a contract with defendants. From an order refusing to sustain their demurrer to plaintiff's declaration, defendants bring error. Affirmed.

J. M. Stubhs and Martin & Smith, for plaintiffs in error.

Griner & Wade, for defendant in error.

Lumpkin, J. The error assigned is the refusal of the court to sustain a demurrer to plaintiff's declaration. The contents of the declaration will be found in the reporter's statement. The grounds of the demurrer were, in substance: (1) That the declaration set forth no cause of action, and was vague, uncertain, and indefinite. (2) That there was a misjoinder of parties, there being no allegation of any contract, agreement, or conversation between plaintiff and the Lowrys, or that they did or said anything to contribute to the carrying out of the fraudulent scheme by which plaintiff was damaged. (3) That the declaration does not allege plaintiff has been evicted from the premises, or kept out of possession by a better outstanding title. (4) That the declaration fails to show that plaintiff exercised any diligence in making the contracts, and, consequently, the doctrine of caveat emptor is applicable.

1. The first ground of the demurrer is not well founded. The allegations of the declaration cover all the elements which, under the Code, §§ 2958, 3174, give a right of action. It sates there were willful misrepresentations of material facts made to induce plaintiff to act, and upon which he did act, to his injury. There is an additional element essential to an action for deceit, viz., want of knowledge by the plaintiff that the representations were false. It must be shown that he was deceived. 5 Amer. & Eng. Enc. Law, 318, 327; 1 Bigelow, Frauds, 4(i(i. While this fact is not stated in express terms, it is clearly implied. Although it is not in so many words alleged that plaintiff was ignorant of the falsity of the representations made to him by Cheney and Strickland, it is alleged that he was ignorant of the fraudulent conduct of the Lowrys, and of the conspiracy in regard to the lease, until after suit had been instituted against Cheney and Strickland; and, this being true, it would necessarily follow that he was deceived by the representations of Cheney and Strickland. Besides, he alleges that he was defrauded by these representations, which implies that he was deceived by them; for he could not have...