Hubert v. Beale Roofing, Inc., 61648
| Decision Date | 20 March 1981 |
| Docket Number | No. 61648,61648 |
| Citation | 279 S.E.2d 336,158 Ga.App. 145 |
| Parties | HUBERT v. BEALE ROOFING, INC. |
| Court | Georgia Court of Appeals |
Robert H. Owen, Atlanta, for appellant.
W. H. Duckworth, Jr., Jonesboro, for appellee.
The appellant contends that since a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support which would entitle him to relief (Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974)) and since the bond was ambiguous, this court, after drawing all inferences in favor of the pleader (Bulloch County Hospital Authority v. Fowler, 124 Ga.App. 242(1-b), 183 S.E.2d 586 (1971)) should allow the claim to go to the jury. The only basis for this conclusion is the allegedly ambiguous language of the bond which refers first to materials "for constructing built up roof" and, in a subsequent paragraph, covenants to make "repairs of injury to said roof."
One cannot claim to be defrauded about a matter equally open to the observation of all parties where no special relation of trust or confidence exists. Salter v. Brown, 56 Ga.App. 792, 193 S.E. 903 (1937); Williams v. Dougherty County, 101 Ga.App. 193, 113 S.E.2d 168 (1960). Further, in the absence of special circumstances one must exercise ordinary diligence in making an independent verification of contractual terms and representations, failure to do which will bar an action based on fraud. Lorick v. Na-Churs Plant Food Co., 150 Ga.App. 209, 257 S.E.2d 332 (1979); U. S. for Use, etc. v. Northeast Const. Co. of W. Va., 298 F.Supp. 1135.
The issue frequently turns on whether the pleader has opportunity equal to that of the opposite party to determine the true state of affairs. Martin v. North Ga. Lumber Co., 72 Ga.App. 778, 35 S.E.2d 270 (1945). The plaintiff here had no contractual relation whatever with any of the defendants. The repairs were ordered, presumably in accordance with lease provisions, by the plaintiff's tenant, Winn Dixie, and the bond to repair was made out to the plaintiff for the sole reason that he was the owner of the property being protected. The bond properly described the roof as a "built up roof" which was what the building had at the time of the lease. At no place does the bond state that a new roof is being installed. By the slightest exercise of diligence the plaintiff, had he wished, could...
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Mallen v. Mallen
...ordinary diligence in making an independent verification of contractual terms and representations, ..." (Hubert v. Beale Roofing, 158 Ga.App. 145, 146, 279 S.E.2d 336 (1981)), Wife asserts that by virtue of their engagement, she and Husband had a confidential relationship which excused her ......
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Chastain v. Schomburg, 45436
...of contractual terms and representations, failure to do which will bar an action based on fraud." Hubert v. Beale Roofing, Inc., 158 Ga.App. 145, 146, 279 S.E.2d 336 (1981). Therefore, the trial court did not err in granting summary judgment or dismissing the fraud count of the complaint. W......
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