Sikes v. Foster

• Docket Number: 31334.
• Decision Date: 12 September 1946
• Citation: 39 S.E.2d 585,74 Ga.App. 350
• Parties: SIKES v. FOSTER, Sheriff, et al.
• Court: Georgia Court of Appeals

39 S.E.2d 585

74 Ga.App. 350

SIKES v. FOSTER, Sheriff, et al.

No. 31334.

Court of Appeals of Georgia, Division No. 2.

September 12, 1946

Rehearing Denied Oct. 3, 1946.

Syllabus by the Court.

The allegations charging a conspiracy by the defendants to commit an act which was a tort, or to commit lawful acts by methods constituting a tort, in the violation of the plaintiff's legal rights, stated a cause of action as against a general demurrer.

John W Sikes sued A. B. Foster, as the sheriff of Fulton County, and Hugh W. Cromer, Carl W. Smithwick and Mrs. A. B. Foster, as deputy sheriffs, for damages in the sum of $25,000. The material allegations of this petition as amended were as follows:

'3. On July 30, 1945, and for many years prior thereto petitioner conducted a Real Estate brokerage business in the city of Atlanta, with offices in the Chandler (sic) Building, which business he operated, and does now operate, under the trade name of 'Atlanta Realty Company.'

'4. Prior to July 30, 1945, one C. W. Hodges, a resident of said County, listed with petitioner for sale, property located at 4500 Harris Trail, in said County, same being improved property, having a large house thereon, together with approximately eleven acres of land, and which was listed at and for the purchase price of $27,500.00.

'5. Thereafter, and according to custom, petitioner advertised said property for sale through the daily newspaper of Atlanta.

'6. After thus advertising said property, as set forth in the above and preceding paragraph, and on the afternoon of July 30, 1945, defendant Hugh W. Cromer, unknown to petitioner, called petitioner over telephone and stated that he had seen the advertisement of said real estate located at 4500 Harris Trail, and that he was anxious to have petitioner show him said property; that he, said defendant named, had an automobile and desired that petitioner meet him at the entrance of the Chandler (sic) Building for the purpose of accompanying him on an inspection of said property. Accordingly, and obedient to the request of said defendant, petitioner was in the lobby of said Chandler (sic) Building at the time specified when he was approached by defendant Cromer, who falsely and fraudulently represented himself to be Hugh Cromwell a resident of St. Louis, Missouri, engaged in manufacturing concrete mixing machinery; that at said time the said Cromer falsely and fraudulently introduced Mrs. A. B. Foster, who accompanied him, as his wife, Mrs. Hugh Cromwell. Also defendant, Cromer, at the same time introduced defendant Smithwick as Hugh Davis, representing that the said Davis was local representative of his, Cromer's, manufacturing business, having charge of sales for said Company throughout the Southeastern States.

'7. Petitioner charges that all of said defendants named in the preceding paragraph were unknown to him; that the said Cromer, acting under the false representations set forth above, represented to petitioner that he was moving his residence from St. Louis to Atlanta; that his household furnishings were already in transit and would reach Atlanta within a short while and it was, therefore, imperative that he obtain a home without delay, as he had been unable to find adequate hotel accommodations for himself and wife. He further represented that he had seen the advertisement of the property herein referred to and felt assured the same would meet his necessities, provided an agreement could be reached on the price thereof.

'8. Thereupon, acting upon the representations set forth in the preceding paragraphs, and believing and relying upon truthfullness of said representations, petitioner accompanied said defendants to the property located at 4500 Harris Trail and spent the greater part of the afternoon showing them through the house and over the acreage connected therewith.

'9. After going through the house, and over the acreage, as set forth in the above paragraph, defendant Cromer, represented to petitioner that he was highly pleased with the property and agreed to purchase the same for $27,500.00, subject to an examination of the titles. Whereupon, petitioner suggested that he put up a given sum as earnest money to bind the trade. So, thereupon, defendant Cromer, stated that he would meet petitioner at the house the following morning, July 31, and would sign a formal contract of purchase and deposit with him the sum of $1,000.00 as earnest money.

'10. Accordingly, on the following day, petitioner met said defendants at 4500 Harris Trail, whereupon, he ascertained, to his amazement, that said defendant, Cromer, had no intention of purchasing said property; that the representations made as to the said Cromer being a St. Louis manufacturer were absolutely false, as well to the representations made as to the identity of the other individuals defendants herein named, save defendant A. B. Foster.

'11. Petitioner charges that the imposition and fraud perpetrated upon him, as hereinbefore set forth, was a result of a conspiracy previously entered into between the individual defendants herein named, and that in furtherance of said conspiracy it was agreed and determined by said conspirators to impose upon and trespass upon petitioner, using petitioner as a 'cats paw' for the purpose of apprehending a fugitive from justice.

'12. Petitioner avers that he relied upon the representations made by said defendants as true and, thinking they were bona fide devoted his time and attention in an effort to consummate said sale; that had said trade been closed, as agreed, petitioner would have received, as commissions thereon, the sum of $1,050.00. Petitioner therefore charges, as a result of said false and fraudulent representations, he sustained special damages in the sum of $1,050.00.

'13. Petitioner charges that the conduct of the individual defendants herein named, as in this petition set forth, was diabolical, reprehensible, and illegal, and as a result of the imposition upon him entitles him to general damages against each and all of said defendants.

'14. Petitioner charges that by reason of the diabolical, reprehensible, and illegal conduct of said defendants, as in this petition set forth, he is entitled to collect punitive damages against said defendants, in order that said defendants may be deterred from prepetrating further frauds upon petitioner or others.'

The trial court sustained a general demurrer and...