Daugert v. Holland Furnace Co., 39992

Decision Date03 April 1963
Docket NumberNo. 1,No. 39992,39992,1
Citation107 Ga.App. 566,130 S.E.2d 763
PartiesStanley M. DAUGERT v. HOLLAND FURNACE COMPANY
CourtGeorgia Court of Appeals

Syllabus by the Court

In a petition for damages for fraud and deceit by misrepresentations, the allegations that the defendant had previously done satisfactory work for the plaintiff, that one of the defendant's employees was misrepresented to be an engineer, that the plaintiff was a layman as to matters misrepresented, and that the defendant's misrepresentations as to the dangerous condition of the plaintiff's heating system caused the plaintiff to act to his injury out of fear that his home and family were in jeopardy, were sufficient to authorize a jury to find that the plaintiff was justified in relying on the alleged misrepresentations in the exercise of common prudence and diligence; the other essential elements of the cause of action having been alleged, the court erred in sustaining a general demurrer to the petition and dismissing the action. The question of the measure of damages is not raised by a general demurrer.

Stanley M. Daugert sued Holland Furnace Company for damages for fraud and deceit arising from the defendant's alleged misrepresentations with regard to its installation of a furnace and hot water heater in the plaintiff's home. The petition as amended alleged substantially as follows: The plaintiff requested the defendant company to clean his furnace and furnace pipes and service his furnace burner. Three of defendant's employees, one of whom was introduced and referred to several times as an 'engineer,' inspected the plaintiff's heating system and made the following fraudulent misrepresentations: That the furnace was in such a dangerous condition it could burn up the house at any time; that the furnace combustion chamber and heating system was in such a dangerous and defective condition that it was generating and sending noxious gases into the living area of the home with resulting great danger of asphyxiation of the plaintiff's family; that the plaintiff's hot water heater was in such poor condition that it was likely to break down at any minute; that they could and would replace these defective items within a few days; that one of the employees was an engineer (the same being a violation of Code Ann. § 84-2102). These misrepresentations were fraudulently made by the defendant and its agents, who knew they were false, to induce the plaintiff to sign a written contract for the replacement of the items misrepresented to be defective. The defendant had cleaned the plaintiff's furnace previously and the plaintiff, being a layman in these matters, relied on the defendant's prior satisfactory service, plus its representations that an engineer had inspected the system and that it was defective. The plaintiff did not know the representations were false at the time they were made. The defendant commenced the replacement under the contract, but the installation was so improperly done that it was condemned by the Department of Inspection of DeKalb County. Thereafter the defendant refused either to remove the defective installation or to return the plaintiff's original equipment and the plaintiff was forced to have a third party replace the heating system improperly installed by the defendant. The defendant's actions are part of a massive systematic sales scheme effectuated by means of false representations and coercive and scare tactics, having been practiced upon the public for about a decade or longer and still being utilized. At the time of the alleged fraud upon the plaintiff, the defendant was subject to a cease and desist order of the Federal Trade Commission under the Federal Trade Commission Act, Sec. 5 (15 U.S.C.A. § 45), affirmed by the U. S. Court of Appeals for the Seventh Circuit, covering such misrepresentations, as well as a similar injunction by the District Court in the Third Judicial District of the State of Minnesota. The prayer was for damages for the replacement cost of the plaintiff's furnace, taken by fraud, exemplary damages, and attorney's fees.

The court sustained the general demurrer to the petition as amended and dismissed the action, to which judgment the plaintiff excepts.

Aaron Baranan, Atlanta, for plaintiff in error.

Nick G. Lambros, Casper Rich, Atlanta, for defendant in error.

FELTON, Chief Judge.

'Where the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, he ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek damages resulting from the fraudulent misrepresentation. * * *' Nichols v. Williams Pontiac, Inc., 95 Ga.App. 752(1), 98 S.E.2d 659; Dunn v. Citizens & Southern Company, 47 Ga.App. 600(1), 471 S.E. 170; Code §§ 96-201, 96-202, 20-502, 37-703, 105-302. In the instant case we construe the petition as one sounding in tort for fraud and deceit, rescinding the contract, since under the allegations the contract was fraudulently induced. The plaintiff alleged compliance with the requirement of Code § 20-906 of an offer to restore the subject matter of the contract by his request of the defendant to remove the installation.

'In Georgia, the essential elements of a cause of action for the common law tort of deceit based upon fraud have been stated to be: '(1) a representation; (2) its falsity, (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's...

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20 cases
  • Gibson v. Home Folks Mobile Home Plaza, Inc.
    • United States
    • U.S. District Court — Southern District of Georgia
    • 10 d3 Março d3 1982
    ...that plaintiff was not justified in relying on them in the exercise of common prudence and diligence. See Daugert v. Holland Furnace Co., 107 Ga.App. 566, 569, 130 S.E.2d 763 (1963). A lack of diligence may appear as a matter of law where plaintiff blindly relies upon the representations of......
  • Bill Spreen Toyota, Inc. v. Jenquin
    • United States
    • Georgia Court of Appeals
    • 7 d2 Setembro d2 1982
    ...an essential element of fraud is an intent that the representation be acted upon by the other party. Daugert v. Holland Furnace Co., 107 Ga.App. 566, 130 S.E.2d 763 (1963). It is a jury question except in plain and palpable cases. Brown v. Techdata Corp., Inc., 238 Ga. 622, 234 S.E.2d 787 (......
  • Hertz Corporation v. Cox, 26251.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 2 d3 Setembro d3 1970
    ...S.E. 2d 429, 433 (1968); Friendly Finance Company v. Stover, 109 Ga.App. 21, 134 S.E.2d 837, 839 (1964); Daugert v. Holland Furnace Company, 107 Ga.App. 566, 130 S.E.2d 763, 765 (1963); Snows Laundry & Dry Cleaning Co. v. Georgia Power Co., 61 Ga.App. 402, 6 S.E.2d 159, 161 (1939); Leatherw......
  • Brown v. Five Points Parking Center
    • United States
    • Georgia Court of Appeals
    • 27 d3 Maio d3 1970
    ...or amount thereof. Consequently, the elements necessary for the showing of fraud and deceit do not appear. Daugert v. Holland Furnace Co., 107 Ga.App. 566, 569, 130 S.E.2d 763. 'The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the ......
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