Mangham v. Cobb
| Decision Date | 13 March 1925 |
| Docket Number | 4681. |
| Citation | 127 S.E. 408,160 Ga. 182 |
| Parties | MANGHAM ET AL. v. COBB. |
| Court | Georgia Supreme Court |
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Action by Mrs. Maud Barker Cobb against J. J. Mangham and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Alston Alston, Foster & Moise and McElreath & Scott, all of Atlanta for plaintiffs in error.
Thos R. R. Cobb, Ben J. Conyers, and Edgar Latham, all of Atlanta, for defendant in error.
1. Mrs. Maud Barker Cobb filed her petition against J. J. Mangham, in which she made the following allegations: On November 22, 1922, she entered into a written contract with J. J. Mangham, whereby she agreed to purchase from him and he agreed to sell to her all that tract or parcel of land fully described in said contract, which is attached to the petition and made a part thereof. The frontage of the lot on West Peachtree street is stated in this contract to be 50 feet, more or less. Mangham knew that said lot had a frontage of only 45 feet on said street. The misrepresentation of the frontage of said lot was made by Mangham for the purpose of inducing petitioner to agree to pay the sum of $17,500. She relied solely upon Mangham's representation that said lot had a frontage of 50 feet, and he was aware of this fact. She would not have agreed to pay said sum of money for said lot had she known that it contained a frontage of only 45 feet, and this fact was known to Mangham.
The relative value of said deficiency of 5 feet is $2,500. She elects under said contract to exercise the right to have an apportionment of the price of said lot according to the relative value of said deficiency. She has notified said Mangham of said election, and he refuses to accede thereto. She is ready to comply with said contract when Mangham corrects, or is required by the court to correct, said fraud by an apportionment of the purchase price according to the relative value of said deficiency, which fact has been communicated to the defendant, who refuses to carry out said contract in this manner. It is her right to have a proportionate reduction in the purchase price agreed to be paid, and the defendant's refusal to comply with his obligations under said contract on these terms is unwarranted, and constitutes a violation of her legal rights. The defendant has not only been guilty of fraud as above alleged, but he has been and is stubbornly litigious, and petitioner prays that he be required to pay the expense of this litigation, including attorney's fees in the amount of $500.
By an amendment to the petition, the plaintiff alleged that the deficiency in the land contracted to be sold by defendant to her is so gross as to justify the suspicion of willful deception, or mistake amounting to fraud; that she never had any conversation with defendant relative to the sale of the lot in question, the negotiations for its purchase being conducted by her son as her agent and by one Reitz as agent for the defendant; that Reitz took plaintiff and her son to said lot; that Reitz then and there stated that the lot had a frontage of 50 feet; that plaintiff could get it for $350 per front foot, or $17,500; that Reitz did not disclose the name of the owner; that plaintiff made an offer of $16,500; that Reitz brought to her agent the contract to be signed, stipulating said sum as the purchase price; that after securing her signature Reitz went and secured the defendant's signature returning with $17,500 inserted in the contract, instead of $16,500, plaintiff then learning the name of the owner; that plaintiff accepted the contract as altered; that the defendant gave Reitz the description of the property, knowing it to be false; that Reitz was the agent of the defendant; that there were no fences or landmarks from which any correct measurement could have been made, and she had no means of confirming the agent's statement as to the frontage, except by survey; that the defendant did not furnish her with the conveyance which had been made to him of the lot, which correctly described said lot as having a frontage of 45 feet, nor did he furnish any description whatever except that contained in said contract; that the defendant had not only bought said lot as having a frontage of 45 feet, but after he bought it and before he contracted to sell it to plaintiff he had twice conveyed it to other parties, describing it in each instance as having a frontage of 45 feet; that at the time defendant signed said contract he knew the frontage was therein described as 50 feet; that he knew this description was false, and that plaintiff and her agent had acted upon said false description in signing said contract and ratifying the same in its altered form, his purpose being to deceive plaintiff; that plaintiff gave defendant two written notices concerning said shortage, and of her election of remedy, as alleged in the petition; that on or about December 11, 1922, her agent stated to the defendant that plaintiff had elected to consummate said sale on the basis of apportionment of the purchase price and the defendant replied that he would not reduce the price a nickel; and that plaintiff is still willing and prepared to consummate said sale.
The defendant demurred on the grounds: (1) That there was no equity in the petition; (2) that it set forth no cause of action; and (3) that the making of the contract did not constitute a deception or misrepresentation of the frontage, for the reason that said frontage is described in the contract as being "fifty (50) feet, more or less," and if it is intended to charge that any deception or misrepresentation was made by the defendant by other means, the paragraph of the petition charging the same is too vague and indefinite, because it does not set out the means used. There were two grounds of special demurrer. The court overruled the demurrer. To this judgment the defendant excepted.
Where a city lot of land is sold in a body as containing a frontage of a certain number of feet, "more or less," and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. Walton v Ramsey, 50 Ga. 618. But where the vendor in the course of the sale is guilty of actual fraud in representing the frontage, the rule is different. Kendall v. Wells, 126 Ga. 343, 55 S.E. 41. The petition in this case alleges that the vendor's representation at the time of the sale as to the width of the lot was not only false, but false within the vendor's knowledge, and that it was acted on by the vendee to her injury. This is a charge of actual fraud. Emlen v. Roper, 133 Ga. 726, 66 S.E. 934. According to the allegations of the petition, the plaintiff was fraudulently induced to buy a lot of less width than the vendor represented it to be; and under these circumstances the plaintiff was...
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