Price v. Mitchell, Nos. 59358
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | William G. Tanner, J. L. Edmondson, Lawrenceville, T. Penn McWhorter, Winder, Dean Covington; Nathaniel Daniel Wages, Winder, William G. Tanner; CARLEY; QUILLIAN, P. J., and SHULMAN |
| Citation | 154 Ga.App. 523,268 S.E.2d 743 |
| Parties | PRICE v. MITCHELL et al. J. L. TODD AUCTION COMPANY v. MITCHELL et al. |
| Decision Date | 18 June 1980 |
| Docket Number | 59359,Nos. 59358 |
Page 743
v.
MITCHELL et al.
J. L. TODD AUCTION COMPANY
v.
MITCHELL et al.
Decided April 18, 1980.
Certiorari Denied June 18, 1980.
Page 744
[154 Ga.App. 527] Nathaniel Daniel Wages, Winder, for appellant (case no. 59358).
William G. Tanner, J. L. Edmondson, Lawrenceville, T. Penn McWhorter, Winder, Dean Covington, J. Bryant Durham, Jr., Rome, for appellees.
J. Bryant Durham, Jr., Dean Covington, Rome, for appellant (case no. 59359).
Nathaniel Daniel Wages, Winder, William G. Tanner, J. L. Edmondson, Lawrenceville, for appellees.
[154 Ga.App. 523] CARLEY, Judge.
Appellant-Price engaged the services of the appellant-Todd Auction Company (Todd) to sell his property. Appellee-Mitchell and her now deceased husband were the high bidders at the auction and signed a contract to close the sale within 30 days. The Mitchells paid a $37,000 deposit to Todd, to be retained by Price as liquidated damages in the event of the Mitchells' breach. The Mitchells accepted possession of the property but, before closing, a dispute arose as to certain representations allegedly made by Price and Todd with reference to the property as inducements for the purchase thereof by the Mitchells. The Mitchells refused to close the deal until their demand that these representations be honored was met. The primary alleged representations
Page 745
relied on by appellee were that a generator for back-up electricity would be reinstalled and that a road to the property would be relocated. Subsequently the Mitchells filed the instant suit against Price and Todd, seeking the return of the $37,000 deposit. The jury returned a verdict for the Mitchells and judgment was entered thereon. Price and Todd appeal.1. Appellants urge that it was error to deny their respective motions for directed verdict and judgment n. o. v. " 'A promise to do a certain thing for the benefit of the promisee, made to induce his entrance into a contract, the promisee earnestly believing that he would receive the benefits consequent upon the fulfillment of the promise, when at the time of making the promise there was no intention on the part of the promisor to fulfill it, but, on the contrary, the promise was made with intent not to fulfill it and was uttered as [154 Ga.App. 524] a mere scheme or device to defraud, is such a fraud as will void any contract induced thereby. A promise thus fraudulently made will authorize rescission of a written instrument purporting to be a contract.' (Cits.)
" 'A material representation falsely made by a vendor to a vendee to induce a sale, and made with knowledge of its falsity and acted upon to the vendee's injury, amounts to actual fraud ((cits.)), and will void a contract ((cit.)), and authorize rescission by the vendee if he acts promptly after discovery of the fraud and restores or offers to restore whatever of value he has received by virtue of the contract.' (Cits.)" King Sales Co., Inc. v. McKey, 104 Ga.App. 63, 67, 121 S.E.2d 48, 51 (1961). " 'When a vendee is induced to enter into a contract for the purchase of land by the fraud of the vendor, when the former discovers the fraud he has an election of remedies. One of such remedies is to rescind the contract, and another is to affirm the contract and sue for damages for the fraud. (Cit.) . . .' (Cit.) 'One who has been fraudulently induced to purchase property may, after discovering the fraud, affirm the contract and sue for damage resulting from the fraud, or he may rescind the contract for fraud and, after offering to restore, recover the purchase price paid by him. (Cit.) . . .' " Corbin v. Lee, 121 Ga.App. 784, 785, 175 S.E.2d 102, 104 (1970). In the instant case, the Mitchells obviously have chosen not to affirm the contract since they refused to consummate the transaction. Therefore, the Mitchells sought recovery of the $37,000 deposit paid on the purchase-price and, should the evidence support a finding of fraud in the inducement, a recovery of this amount would be authorized. Walters v. Hagan, 53 Ga.App. 547, 186 S.E. 563 (1936). See also Eastern...
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Williams v. Dresser Industries, Inc., No. 1:92-CV-333-RHH.
...Wilhite, cited supra, 239 Ga. at 31, 235 S.E.2d 532; Guernsey, cited supra, 183 Ga.App. at 791, 359 S.E.2d 920; Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743 (1980). Defendant presents no argument why that general rule should not be applied to cases alleging fraud and arising out ......
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Giw Industries, Inc. v. Jerpeg Contracting, Inc., No. CV 106-127.
...the defrauded party has an election either to affirm the contract and sue for damage or rescind the contract. See Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743, 745 (1980). However, this principle does not necessarily apply where the alleged fraud does not relate purely to the ind......
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McClure v. Gower, Nos. S89A0149
...232(1), 348 S.E.2d 750 (1986); Altamaha, etc., Center v. Godwin, 137 Ga.App. 394(2), 224 S.E.2d 76 (1976). Cf. Price v. Mitchell, 154 Ga.App. 523(6), 268 S.E.2d 743 (1980) and cits. Page 274 2. OCGA § 5-6-35(a)(6) requires an application for discretionary appeal "when there is an actio......
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Miles Rich Chrysler-Plymouth, Inc. v. Mass, CHRYSLER-PLYMOUT
...appellee had not elected to affirm the contract but rather was pursuing inconsistent remedies against appellants, see Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743 (1980), which she could do since she was not required to elect her remedy prior to submission of the case to the jury......
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Williams v. Dresser Industries, Inc., No. 1:92-CV-333-RHH.
...Wilhite, cited supra, 239 Ga. at 31, 235 S.E.2d 532; Guernsey, cited supra, 183 Ga.App. at 791, 359 S.E.2d 920; Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743 (1980). Defendant presents no argument why that general rule should not be applied to cases alleging fraud and arising out ......
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Giw Industries, Inc. v. Jerpeg Contracting, Inc., No. CV 106-127.
...the defrauded party has an election either to affirm the contract and sue for damage or rescind the contract. See Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743, 745 (1980). However, this principle does not necessarily apply where the alleged fraud does not relate purely to the ind......
-
McClure v. Gower, Nos. S89A0149
...232(1), 348 S.E.2d 750 (1986); Altamaha, etc., Center v. Godwin, 137 Ga.App. 394(2), 224 S.E.2d 76 (1976). Cf. Price v. Mitchell, 154 Ga.App. 523(6), 268 S.E.2d 743 (1980) and cits. Page 274 2. OCGA § 5-6-35(a)(6) requires an application for discretionary appeal "when there is an actio......
-
Miles Rich Chrysler-Plymouth, Inc. v. Mass, CHRYSLER-PLYMOUT
...appellee had not elected to affirm the contract but rather was pursuing inconsistent remedies against appellants, see Price v. Mitchell, 154 Ga.App. 523, 524, 268 S.E.2d 743 (1980), which she could do since she was not required to elect her remedy prior to submission of the case to the jury......