Leatherwood v. Boomershine Motors Inc

• Decision Date: 03 July 1936
• Docket Number: No. 25078.,25078.
• Citation: 53 Ga.App. 592,186 S.E. 897
• Parties: LEATHERWOOD. v. BOOMERSHINE MOTORS, Inc.
• Court: Georgia Court of Appeals

53 Ga.App. 592

186 S.E. 897

LEATHERWOOD.

v.BOOMERSHINE MOTORS, Inc.

No. 25078.

Court of Appeals of Georgia,

Division No. 1.

July 3, 1936.

Syllabus by the Court.

"In any action sounding in tort for damages on account of actual fraud, the gist of the action is the purpose and design to deceive, " it being "indispensable that the scienter be both alleged and proved."

Error from Municipal Court of Atlanta, Appellate Division.

Action by M. F. Leatherwood against the Boomershine Motors, Inc. Judgment for defendant, and plaintiff brings error.

Affirmed.

Frank A. Doughman, of Atlanta, for plaintiff in error.

J. Wilson Parker, of Atlanta, for defendant in error.

MacINTYRE, Judge.

M. F. Leatherwood brought an action against Boomershine Motors, Inc., in the municipal court of Atlanta. The petition contained two counts; the first being an action for deceit, and the second being predicated on a breach of the implied warranty of the law. The trial judge "adjudged that the issues of fact in this case be * * * determined in favor of the defendant." The case was appealed to the appellate division of the municipal court of Atlanta; error being assigned (a) "because the judgment of the court is contrary to law, " and (b) "because the court erred in not holding that the measure of damages was the difference between the value of the article at the time of sale and the price paid." The appellate division affirmed the judgment of the trial judge, holding that, "the evidence not being sufficient to authorize a recovery, the trial judge did not err in finding for the defendant."

With the second count, which is not seriously insisted on, we are not concerned. The retention title contract under which the automobile in question was sold provides: "No warranties, expressed or implied, representations, promises or statements have been made by the seller unless endorsed hereon in writing."

The first count substantially alleges that the defendant damaged the plaintiff in the sum of $135 by inducing him to purchase from i^ for $385 an automobile worth only $250 by falsely representing, through its agent, T. M. Brisendine (a) "that said automobile had not been driven more than 19, 000, " when, as a matter of fact, it had been driven about 60, 000 miles; (b) "that the paint * * * on said automobile was its original paint, " when it had been repainted; and (c) "that said automobile was in first-class mechanical condition, " when, in various particulars, it was not; and that "said misrepresentations were false and * * * were wilfully made; that the facts misrepresented were material; that said wilful misrepresentations were made to induce the plaintiff to act to his injury in the purchase of said automobile; that plaintiff did act upon said misrepresentations to his injury that said defendant knew that said representations were * * * false; that plaintiff did not know that said representations were false."

"A material misrepresentation, constituting actual fraud, may give rise to an independent action in tort for deceit, to recover for damage thus occasioned. In such a suit it is necessary to show, not only that a material misrepresentation was made for the purpose of inducing...