Holman v. Ruesken, 36562
| Decision Date | 17 October 1980 |
| Docket Number | No. 36562,36562 |
| Citation | 246 Ga. 557,272 S.E.2d 292 |
| Parties | HOLMAN v. RUESKEN. |
| Court | Georgia Supreme Court |
F. Robert Raley, Macon, for appellant.
George T. Brown, Jonesboro, James M. Wootan, Macon, for appellee.
This is an appeal from an order of the trial court effecting a rescission of a contract of sale of a certain mobile home park.
Appellee purchaser sued appellant seller alleging that appellant had fraudulently misrepresented the condition of the park during their negotiations. The jury returned a special verdict for appellee after which the trial judge ordered appellant to reassume operation of the park immediately and established certain financial set-offs between the parties.
Appellant filed a motion for a judgment notwithstanding the verdict or a new trial and reassumed operation of the park in compliance with the trial court's order. Following the denial of his motion some months later, appellant brought this appeal.
1. Appellee's motion to dismiss the appeal is denied because any attempt on appellant's part to appeal prior to the disposition of his motion for new trial would have been premature. Minter v. State, 229 Ga. 804, 194 S.E.2d 462 (1972); see also Code Ann. § 6-701 (a)1.
2. Appellant's enumerations of error go mostly to the weight of the evidence against him proving fraud. Appellant contends that there was no evidence which would have amounted to a showing of fraud as a matter of law.
On the contrary, appellee presented testimony that appellant had been informed of the seriousness of the problems with the electrical and sewerage systems by various repairmen, and that appellant had told his maintenance man that the less he said about the condition of the park, the better off he would be. Further testimony indicated that appellant told one sewerage repairman merely to temporarily unclog a line in need of replacing because he had "a guy coming today to look at it," presumably referring to the appellee.
"... 'Circumstances apparently trivial or almost inconclusive, if separately considered, may by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof (of fraud).' " (Cit.) Durrence v. Durrence, 224 Ga. 620, 623, 163 S.E.2d 740 (1968).
Appellant maintains that appellee was not properly diligent in his inspection of the park prior to its purchase, and further contends that any defect could have been discovered by appellee. Georgia law requires that one allegedly defrauded must have exercised due diligence to discover the fraud perpetrated against him before he can recover. McClelland v. Westview Cemetery, 148 Ga.App. 447, 251 S.E.2d 351 (1978).
First of all, the trial court charged the jury that the contract could be rescinded on either of two theories: the fraudulent misrepresentations of material facts made by appellant to appellee or the concealment of material facts known by appellant prior to the sale. The jury could have found based on the evidence that appellant clearly intended to deceive appellee (i. e., telling his maintenance man not to disclose the whole truth about the condition of the park) and the jury could also have inferred that appellant concealed material facts known by him but not apparent to appellee. See Wilhite v. Mays, 239...
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Gibson v. Home Folks Mobile Home Plaza, Inc.
...problems, see affidavit of Arlette C. Stewart, Home Folks Office Manager, by simple inspection of the premises. See Holman v. Reusken, 246 Ga. 557, 272 S.E.2d 292 (1980); Wilhite v. Mays, 140 Ga.App. 816, 232 S.E.2d 141 (1976), aff'd, 239 Ga. 31, 235 S.E.2d 532 (1977) (carving out exception......
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Miller v. Clabby
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