Cosby v. Asher

• Decision Date: 21 March 1947
• Docket Number: 31539.
• Parties: COSBY v. ASHER.
• Court: Georgia Court of Appeals

41 S.E.2d 793

74 Ga.App. 884

COSBY v. ASHER.

No. 31539.

Court of Appeals of Georgia, Division No. 1.

March 21, 1947

Syllabus by the Court.

The court did not err in sustaining the demurrer and dismissing the petition for any of the reasons assigned.

A. G Cosby, whom we shall call the plaintiff, sued W. T. Asher whom we shall call the defendant. A general demurrer was filed by the defendant, and was sustained. To the judgment sustaining the general demurrer and dismissing the petition the plaintiff assigns error. The material parts of the petition reads:

'1. The defendant W. T. Asher is a resident of Fulton County Georgia.

'2. During the month of November, 1945, petitioner read an advertisement in the Atlanta Journal which offered a filling station business for sale. A copy of said advertisement is attached to and is made a part of this petition and is marked Exhibit A.

'3. Petitioner was interested in acquiring a place of business to earn a living.

'4. Petitioner went to see the agent who had advertised the property, and was informed that there was a four (4) year lease on the property described in the advertisement and that this lease could and would be transferred to the purchaser.

'5. A copy of the actual lease or contract of rental on the property so listed and so advertised, is attached to and is made a part of this petition and is marked Exhibit B.

'6. The lease set forth as Exhibit B is not recorded.

'7. The statement as to the length of and transferability of the said lease was false, and was made with the intent to cause petitioner to purchase the property advertised as described above.

'8. The defendant W. T. Asher had never observed the covenants in the lease which reads as follows: 'Lessor and lessee shall have joint use of any and all driveways lying between the service station property and lessor's laundry property, and it is agreed that customers of either business shall have the use of such driveway at said point. Lessee agrees to paint the service station building at least once each year, using one coat of paint thereon, unless lessee shall be advised in writing by lessor that lessor deems it unnecessary to so paint said premises. Lessee agrees to keep said premises clean and attractive in appearance at all times.'

'9. The defendant W. T. Asher had conducted the station in such a manner that the lessor had already decided to declare the lease at an end, at the time when defendant was negotiating to sell the business to plaintiff.

'10. Petitioner did not know these facts and in particular had no means of knowing that the lessor H. C. Hendricks had already decided to declare the lease at an end on account of the failure of W. T. Asher to observe the covenants of the lease.

'11. While the negotiations for a sale of the lease and the properties on the land were in progress, the lessor, H. C. Hendricks was not in the county and plaintiff could not consult him.

'12. W. T. Asher assured petitioner that on Hendrick's return, a proper transfer of the lease would be made.

'13. Acting on these representations the petitioner paid W. T. Asher $2000.00 for the business.

'14. Petitioner moved into the premises and began operating the filling station on November 16, 1945.

'15. H. C. Hendricks, the lessor, returned to the county on or about December 1, 1945.

'16. On or about January 1, 1946, H. C. Hendricks notified W. T. Asher and petitioner that he had declared the lease at an end because of the failure of W. T. Asher to observe the covenants of the lease. A copy of said notice is attached to and is made a part of this petition and is marked Exhibit C.

'17. The items of fixtures and personal property which were sold by defendant to petitioner had no value, if severed from the premises.

'18. Petitioner sold the articles of personalty and fixtures sold to him by W. T. Asher to H. C. Hendricks, the lessor, for $605.70 which amount is and was the fair market value of said fixtures and personal property, as located on the premises, and not severed therefrom.

'19. By reason of the facts set forth above petitioner has been damaged in the sum of $1,394.00, being the actual difference between the purchase price of $2,000.00 and the actual value of the properties sold to petitioner, and re-sold by him to H. C. Hendricks.'

The advertisement mentioned bore date of November 13, 1945. The material portions of the lease, not set out in the plaintiff's petition, are: That the lease was originally between H. C. Hendricks and one George D. Stewart providing for a term of two years beginning on the 9th day of November, 1944, and ending on the 8th day of November, 1946; that the lease further provided that the lessee could not transfer the lease without the written consent of the lessor; that Stewart, on June 8, 1945, with the written consent of the lessor, transferred the lease in question to the defendant Asher. The lease further contained this material provision, under Special Stipulations: 'Lessee shall have the right, upon expiration of this lease, to renew same for an additional term of three years, upon giving to lessor written notice of his intentions to renew, said notice to be served upon lessor at least thirty days before the expiration of this lease.' There is attached also as an exhibit to the petition, a letter dated December 29, 1945, written by counsel for Hendricks to Asher, giving notice to Asher to vacate the premises within thirty days because of the violations of certain stipulations in the lease on the part of Asher.

It will be observed that the petition is grounded on the law of fraud and deceit and is no treated by the parties, except the plaintiff contends also that the facts in his petition may as well be considered as an action for money had and received, or unjust 'enrichment,' of the defendant.

Mitchell & Mitchell, of Atlanta, for plaintiff in error.

Dunaway, Riley & Howard, of Atlanta, for defendant in error.

GARDNER Judge.

In our view, if the petition fails to set out a cause of action for fraud and deceit, the demurrer was properly sustained. Otherwise the petition should not have been dismissed on demurrer. Let us therefore gage the petition by the essential and necessary elements which must be alleged and proven in an action of fraud and deceit. The decisions of our court are clear and specific as to what these elements are. Those elements are: (a) that the representations were made by the defendant; (b) that they were knowingly and with design false; ...