Edwards v. Stiles, 32839

• Decision Date: 09 March 1950
• Docket Number: No. 1,No. 32839,32839,1
• Citation: 81 Ga.App. 138,58 S.E.2d 260
• Parties: EDWARDS v. STILES
• Court: Georgia Court of Appeals

Page 260

58 S.E.2d 260

81 Ga.App. 138

EDWARDS v. STILES.

No. 32839.

Court of Appeals of Georgia, Division No. 1.

March 9, 1950.

Syllabus by the Court.

When this action for fraud and deceit in connection with a contract for the sale of real estate was before this court previously it was held that the evidence did not authorize a verdict for the plaintiff under the allegations of the petition. Before another trial, the plaintiff amended his petition by alleging liability of the defendant on account of his failure to inform the plaintiff that he was not the sole owner of the property. The evidence adduced for the plaintiff on the second trial would not authorize a jury to determine that there was any intentional suppression or concealment by the defendant of the fact that his wife owned a half interest in the property for the purpose of misleading and deceiving the plaintiff. In all other respects the evidence is substantially the same as on the former trial and is controlled by the previous ruling of this court on the evidence as failing to support the allegations of the petition. Accordingly, it was not error for the trial judge to grant a nonsuit.

John L. Green, Athens, James Barrow, Athens, for plaintiff in error.

Eugene A. Epting, Athens, for defendant in error.

SUTTON, Chief Judge.

This is an action for damages for fraud and deceit in connection with a contract for the sale of real estate. When the case was here before, on the overruling of demurrers and the overruling of a motion for a new trial, this court held that the evidence did not authorize a verdict for the plaintiff, and reversed the judgment of the lower court overruling the defendants' motion for a new trial. A statement of the pleadings and evidence is contained in the report of that case. See Stiles v. Edwards, 79 Ga.App. 353, 53 S.E.2d 697.

Before another trial the plaintiff amended his petition by adding allegations to the effect that the defendant's statements to Bradberry, who handled the negotiations for the parties, were such as would mislead the plaintiff as to the true ownership of the property, and that the defendant knew that the plaintiff had a mistaken idea as to the ownership of the property, but failed to inform the plaintiff concerning the ownership of the property and continued to act and speak as if he were the sole owner of the property. On the second trial, at the conclusion of the plaintiff's evidence, the trial judge granted a nonsuit, and the plaintiff excepted.

It is now the contention of the plaintiff that the failure of the defendant to inform the plaintiff as to the ownership of the property was equivalent to a false representation which is actionable, and that the evidence adduced for the plaintiff on the second trial would authorize a jury to find for the plaintiff under this theory of the case. It was necessary, in order to recover under the theory of the amendment, for the plaintiff to adduce evidence which would show that any failure to inform on the part of the defendant amounted to an intentional suppression or concealment of a material fact. "If [material] facts are known to the vendor, and there is an intentional concealment or suppression of them in making a contract, such concealment must be understood as intended for no other purpose than to deceive and mislead the vendee; and where, in such case, the vendee has not equal means of information, he must be regarded as deceived and defrauded." (Italics added.) Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799, 809, 43 S.E. 79, 81, quoting from Hanson v. Edgerly, 29 N.H. 343, 9 Fost. 343. 'Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential...