Monroe v. Goldberg
| Decision Date | 02 February 1950 |
| Docket Number | No. 1,No. 32666,32666,1 |
| Citation | 57 S.E.2d 448,80 Ga.App. 770 |
| Parties | MONROE v. GOLDBERG et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The question of specific performance, which was sought in the original petition, having become moot in the trial court, and the allegations of the petition as amended not setting forth any cause of action for damages, either because of an alleged breach of contract as to the sale of certain realty or because of alleged fraud and deceit, the court did not err in sustaining the general demurrers of three defendants, and since the fourth defendant had ceased to be a material and necessary defendant for reasons stated in the opinion, infra, the court properly dismissed the action as to all defendants.
William P. R. Monroe, Jr. brought suit in the Superior Court of Chatham County against Mrs. Bert S. Goldberg, M. Goldberg, Sam Goldberg and Casper Wiseman, the petition as amended alleging the following: On November 17, 1948, M. Goldberg verbally agreed to sell and W. P. R. Monroe, Sr., acting as agent for the petitioner, agreed to buy a described tract of land in Chatham County, Georgia, known as the Gould or Hazzard tract, the purchase price being $2750, to be paid $500 cash and the balance on named terms. The said M. Goldberg represented to the petitioner's agent at that time that title to the land was in Mrs. Bert S. Goldberg, his wife, and that he had full power and authority to sell the land for her but that he would have to get her to sign the sales ticket. He further represented that his brother, Sam Goldberg, had been handling the property for Mrs. Bert S. Goldberg and had lent $1800 of her money to one Barnes to help pay for the land, that Barnes had fallen down on the first payment and Mrs. Goldberg had taken over the property. On the following day M. Goldberg brought to the petitioner's said agent a sales contract containing a description of certain land. After having inserted in the sales contract a reference to a survey by a named surveyor, because the petitioner was not certain that the description was that of the Gould property, which he intended to purchase, the petitioner's agent then executed the sales contract and gave to M. Goldberg a check for $100, payable to Mrs. Bert S. Goldberg, which check, as earnest money, was endorsed and cashed by Mrs. Goldberg, a copy of the sales contract being attached to the petition and made a part thereof. An examination of the title to the property described in deeds furnished the petitioner's attorney revealed the fact that the tract therein described was entirely different from that which the petitioner had agreed to buy and was known as the C. L. Joyner tract. Further examination revealed that the title to the property which the petitioner agreed to buy, the Gould tract, was vested in the Southern Furniture Specialties Company, a corporation, subject to a deed to secure debt to Sam Goldberg, dated September 3, 1946, claimed to be lost and subsequently established in a proceeding in court on November 2, 1948, and filed for record on November 26, 1948, eight days after the signing of the sales contract with the petitioner. The Goldbergs knowingly and wilfully inserted the wrong description in the sales contract with the intent to defraud the petitioner and did defraud him. When the petitioner's attorney informed M. Goldberg of the situation M. Goldberg stated to the said attorney that he would substitute the Gould or Hazzard tract, the title to which would have to be perfected through Sam Goldberg. Thereafter Sam Goldberg agreed to and acquiesced in the substitution of the Gould tract and perfection of title. The petitioner requested Sam Goldberg to put the agreement in writing, but he refused to do so, but appointed Casper Wiseman as trustee under the aforementioned deed to secure debt, and the said trustee advertised the property to be sold at public outcry on Tuesday, April 4, 1949. The petitioner, by and with the consent of the said Goldbergs, went into possession of the Gould tract shortly after the execution of the sales contract heretofore mentioned and has expended approximately the sum of $1000 in improvements thereon. It was well known to Bert S. Goldberg, Sam Goldberg and M. Goldberg that it was the Gould tract which the petitioner was interested in and desired to purchase, and did agree to purchase, that Sam Goldberg had acted as agent for Bert Goldberg in lending her money to owners of the land, that the representations made to the petitioner were calculated to deceive and mislead the petitioner and did deceive and mislead him into signing the contract hereinbefore mentioned, going into possession of the Gould tract, and in clearing and making improvements thereon. The petitioner is without adequate remedy at law. The damages sustained and to be sustained are irreparable, the exact amount being incalculable. He has been damaged in the sum of $1000 in that after the execution of the sales contract, and within sixty days, by and with the consent of the Goldbergs, the petitioner went into possession of the Gould property, made extensive improvements thereon in clearing the land by digging and removing stumps, brush and undergrowth at an expense of $1000. The said Goldbergs are privies, persons actually interested in the property, and are related to one another and have a common interest...
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...an action for fraud and deceit must be made with reference to existing or past facts and not to future acts'. Monroe v. Goldberg, 80 Ga.App. 770, 775, 57 S.E.2d 448, 451. 'Ordinarily, promises to perform some act in the future will not amount to fraud in legal acceptation, although subseque......
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