F.N. Roberts Pest Control Co. v. McDonald

• Decision Date: 20 June 1974
• Docket Number: No. 49089,No. 2,49089,2
• Parties: F. N. ROBERTS PEST CONTROL COMPANY v. Meets McDONALD
• Court: Georgia Court of Appeals

Page 13

208 S.E.2d 13

132 Ga.App. 257

F. N. ROBERTS PEST CONTROL COMPANY v. Meets McDONALD.

No. 49089.

Court of Appeals of Georgia, Division No. 2.

June 20, 1974.

Rehearing Denied July 3, 1974.

Jack K. Bohler, East Point, for appellant.

Webb, Parker, Young & Ferguson, Thomas L. Murphy, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant appeals from a judgment of the Superior Court of Fulton County in favor of the plaintiff for $5,575 general damages, $4,425 exemplary damages, and $2,000 attorney fees as expense of litigation in this action on a contract for home improvements which was allegedly procured by fraud and deceit based on false representation.

The evidence showed that the plaintiff, as 87-year-old, unmarried woman, had done some business with the defendant corporation over a substantial period of time. On June 30, 1970, after the defendant completed pest control work on the premises, its sales manager, Mr. Roberts, had a conversation with the plaintiff about repairing the roof of the plaintiff's home. The evidence regarding the conversation was conflicting. The plaintiff testified that Mr. Roberts told her a hard wind would probably cave her roof in, that he could not give her an estimate of the cost of repair, and induced her to sign a contract in blank. Mr. Roberts testified that there was much more to be done than just roof repair, but that he and the plaintiff 'figured up that job . . . item for item,' and that the entire contract was filled in providing for a contract price of $5,790 prior to its execution by the plaintiff.

The contract price was paid by the plaintiff in two instalments; the first, of $1,500 by personal check dated July 11, 1970, the second with borrowed funds of $4,290 on July 24, 1970. The plaintiff contended the work was completed when the first instalment was paid; the defendant contended that it was still in progress. The plaintiff testified that she paid the second instalment only after the defendant's agents had threatened 'about three times' to place a lien on her property. This was denied by the defendant's agents. The defendant's agents testified in detail as to the type of work done, the cost of materials, the number of workmen involved, the amount of time consumed in doing the work, and the reasonableness of the contract. Three expert witnesses testified for the plaintiff: first, a contractor of 22 years' experience, the second, a housing code inspector for the City of Atlanta, and the third, a building code inspector for the City of Atlanta. The first described the work done to the plaintiff's home and estimated 'the whole job would cost about $993, including the roof.' The second testified that he had inspected the house sometime before Christmas 1969 and that the house did not need a new roof. After inspecting the work done, the second witness estimated the value of the entirework at $850-$950. The third witness testified that he inspected the work after it was done and that certain portions did not meet the requirements of the building code of the City of Atlanta.

1. The trial judge did not err in denying the defendant's motions for directed verdict.

A vendee wno is induced to enter into a contract of sale by fraud of the vendor, may elect to affirm the contract and sue for damages for the fraud. Mosely v. Johnson, 90 Ga.App. 165, 82 S.E.2d 163; Spindel v. Kirsch, 114 Ga.App. 520, 151 S.E.2d 787. 'A material misrepresentation, falsely made by a vendor to a vendee to induce a sale, and made with a knowledge of its falsity, amounts to actual fraud.' Emlen v. Roper, 133 Ga. 726(2), 66 S.E. 934. It is usually a jury question as to whether the person to whom the alleged false and fraudulent representation is made was negligent in relying thereon. Thompson v. Bank of Arlington, 44 Ga.App. 686(2), 162 S.E. 647. Under the evidence as above recited, a jury question was presented, and, hence, the denials of the motions for directed verdict were proper.

2. The defendant enumerates as error a portion of the judge's charge to the effect that the obligation to communicate a material fact may arise from the confidential relations of the parties. Here, of course, no confidential relationship existed between the parties. In considering the merits of the defendant's contention, this court must examine the charge as a whole, and not merely take an isolated phrase out of context. The paragraph of the charge wherein 'confidential relations' are referred to, was given thusly: 'Suppression of a fact material to be known and which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.' Prior to giving the foregoing, the trial judge gave a lucid and thorough charge on other aspects of fraud and deceit. The abovequoted portion, taken in its entirety, is a charge on the obligation of one to communicate facts, and could not reasonably be interpreted as inferring that a confidential relationship existed between the parties. While the portion of the charge complained of was not entirely adjusted to the evidence, it does not require a reversal of the case. Wilson v. Harrell, 87 Ga.App. 793, 75 S.E.2d 436; Lazenby v. Citizens Bank, 20 Ga.App. 53, 92 S.E. 391.

3. The defendant contends that the trial judge erroneously submitted the question of...