Mosely v. Johnson, 35151

• Decision Date: 13 May 1954
• Docket Number: No. 35151,No. 2,35151,2
• Citation: 82 S.E.2d 163,90 Ga.App. 165
• Parties: MOSELY v. JOHNSON
• Court: Georgia Court of Appeals

Page 163

82 S.E.2d 163

90 Ga.App. 165

MOSELY v. JOHNSON.

No. 35151.

Court of Appeals of Georgia, Division No. 2.

May 13, 1954.

Syllabus by the Court.

The petition here sufficiently alleged that the contract between the plaintiff and the defendant was procured by fraud on the part of the defendant; that the plaintiff promptly upon the discovery of the fraud rescinded the contract, restored the property to the defendant, and brought suit for the purchase money he had paid to the defendant for the property. Accordingly, a cause of action was stated, and the trial court erred in sustaining the general demurrer and dismissing the petition.

H. H. Mosely filed an action for damages against Otis Johnson, trading as Johnson Motor Company, in the Superior Court of Ware County, alleging in substance that on July 24 the defendant's agent sold him a 1949 Dodge pickup truck; that, at the time of the sale, the agent represented the vehicle to be a 150 model, which representations were false, made with intent to defraud the plaintiff, and were believed by him; that on January 8, 1953, the plaintiff discovered that the vehicle was a 1949 instead of 1950 model; and that on January 16 he rescinded the contract of sale, delivered the vehicle to the defendant, and demanded $510.99, which he had paid under the contract toward the purchase price as a result of the false representations and prior to his own discovery of their falsity, and which he is entitled to recover. Upon general demurrer this petition was dismissed, and this judgment is assigned as error.

Parker & McGee, Waycross, for plaintiff in error.

Kopp & Peavy, Waycross, for defendant in error.

TOWNSEND, Judge.

Upon discovery that one has been induced to enter into a contract as the result of a fraudulent misrepresentation, he may elect whether to affirm the contract and bring an action for deceit for damages, or to rescind the contract, thereby repudiating it, and seek to recover the consideration paid. Commercial City Bank v. Mitchell, 25 Ga.App. 837, 105 S.E. 57; Manget v. Cunningham, 166 Ga. 71(2-d), 142 S.E. 543; Tuttle v. Stovall, 134 Ga. 325, 67 S.E. 806. 'In the former case it should appear from the petition to what extent the plaintiff has been damaged as a result of the fraud, and in the latter it must appear that he repudiated the contract for fraud and offered to rescind promptly after the discovery of the fraud.' Dunn v. Citizens and Southern Co., 47 Gal.App. 600(1), 171 S.E. 170, 171. 'There is a distinction to be drawn between a contract induced by fraud and the mere breach of a warranty. In the former case title does not pass, and the contract may be rescinded. In the latter case title does pass, and the purchaser is relegated to his claim for damages. No form of or limitation in a warranty will protect a party from a rescission of a contract on the ground that it was induced by actual fraud.' Dove v. Roberts & Co., 50 Ga.App. 321, 178 S.E. 169. See also Barfield v. Farkas, 40 Ga.App. 559(1, 2, 6), 150 S.E. 600. A material misrepresentation falsely made by a vendor to a vendee to induce a sale, and made with a knowledge of its falsity, amounts to actual fraud. Emlen v. Roper, 133 Ga. 726(2), 66 S.E. 934; Cates v. Owens, 87 Ga.App. 270, 73 S.E.2d 345. Code, § 20-502 provides as follows: 'Fraud renders contracts voidable at the election of the injured party.' Before the cancellation of a contract for fraud will be authorized, it must appear that the complaining party was reasonably diligent in the use of the facilities at his command to detect the same, and he cannot blindly rely upon the misrepresentations of the opposite party and then claim he has been defrauded when the knowledge is as available to the one as to the other. Lewis v. Foy, 189 Ga. 596, 6 S.E.2d 788. However, it is usually a jury question as to whether the person to whom the alleged false and fraudulent representation is made was negligent in relying thereon. Thompson v. Bank of Arlington, 44 Ga.App. 686(2), 162 S.E. 647; Summerour v. Pappa, 119 Ga. 1(5), 45 S.E. 713. Also, to be actionable, fraud must be accompanied by injury, Stovall & Strickland v. McBrayer, 20 Ga.App. 93(1), 92 S.E. 543; Fuller v. Corker Motor Car Co., 137 Ga. 370, 73 S.E. 647, Yet, 'in so far as the right to rescind a contract...