Snow's Laundry & Dry Cleaning Co. Inc v. Ga. Power Co

• Decision Date: 30 November 1939
• Docket Number: No. 27714.,27714.
• Citation: 6 S.E.2d 159
• Parties: SNOW'S LAUNDRY & DRY CLEANING CO., Inc. v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

6 S.E.2d 159

SNOW'S LAUNDRY & DRY CLEANING CO., Inc.

v.GEORGIA POWER CO.

No. 27714.

Court of Appeals of Georgia,

Division No. 1.

Nov. 30, 1939.

Rehearing Denied Dec. 16, 1939.

Syllabus by the Court.

1. Fraud may exist from the misrepresentation made with design to deceive the other party and by which such other party is injured. Where the other party acts to his injury because of the misrepresentation made, he may be entitled to an action therefor, irrespectively whether the statement was wilfully or innocently made.

2. For the opinion of an expert to constitute remediable fraud, it must be in regard to a matter susceptible of definite knowledge where it may be regarded as a statement of fact, and it must be made with knowledge of its falsity, or with reckless disregard of the actual facts or culpable ignorance of their truth. "An expert's honest, although erroneous, opinion is not actionable."

3. In an action for fraud, actionable representation must relate to past or existing facts and can not consist of mere broken promises, or mere estimates of future expenses or costs.

4. "Representations which merely express a vendor's opinion, belief, judgment or estimate, do not constitute a warranty."

Under the evidence adduced the court did not err in directing a verdict for the plaintiff.

Error from Superior Court, Muscogee County; C F. McLaughlin, Judge.

Action by the Georgia Power Company against Snow's Laundry & Dry Cleaning Company, Incorporated, on contracts for the purchase of gas and a gas converter outfit. Judgment for plaintiff, and defendant brings error.

Affirmed.

Young & Carnes, of Columbus, for plaintiff in error.

Foley & Chappell and Albert W. Stubbs, Jr., all of Columbus, for defendant in error.

GUERRY, Judge.

The Georgia Power Company filed suit against Snow's Laundry & Dry Cleaning Company, Inc., alleging that it furnished to the defendant, during the months of November and December, so many cubic feet of gas at a price agreed on under a written contract attached to the petition, and that defendant failed to pay therefor. It also alleged that it had sold and delivered to the defendant a certain gas converter outfit for firing a boiler, under a written contract attached, and that there was a named amount due thereunder. Each of these contracts was dated August 18, 1937.

The defendant admitted the execution of the contracts, the installation of the gas conversion equipment and the price agreed to be paid for each, and that the gas was used by it as alleged, but alleged further that on April 8, 1937, the general gas superintendent of the plaintiff company wrote the defendant a letter in which he stated that he had made a study of defendant's plant where he was using coal to determine the equipment necessary to convert it into a gas-firing plant, and referred defendant to several other named concerns for whom the plaintiff had madesuch changes. This engineer in this letter recommended a named type of equipment and stated the cost of the same, installed, and attached to his letter a "detail estimate of the cost of operating your boiler plant as compared with your present cost of coal. This comparison is based on the use of fifty tons of coal per month. * * * This comparison shows that you would make a saving of approximately $800 per year by automatic gas firing." In addition, the letter called attention to the elimination of coal dust, ashes, smoke, and soot in the laundry. The estimate of the cost of the gas was $230.50 per month as compared to $307.50 per month for coal. The defendant further answered that relying on the truth and correctness of said letter and estimates he entered into the contracts as alleged and installed the equipment on August 20, 1937. He further answered that the gas bill for the first month was $273.15 and that he immediately made complaint and was informed that the excess over the estimate was caused by numerous leaks in the boiler equipment, and that the "plaintiff adjusted said bill and defendant paid same;" that the gas consumption was always more each month than the estimate, and that the plaintiff had never brought the consumption down; that during the latter part of December it offered to rescind said gas contract and purchase contract, pay plaintiff for gas at the rate of $230.50 per month and return to plaintiff the gas-firing equipment it had installed, which offer the plaintiff refused to accept; that the plaintiff's representation as to the cost of the gas consumption each month was untrue and the efficiency of the boiler had not been increased, the amount of such cost each month being alleged; that because of the misrepresentation of material facts concerning the use of said gas and gas-firing equipment it entered into the contracts without knowledge of the falsity thereof. "Defendant shows that because of the fraud practiced upon it * * * the plaintiff is not entitled to recover any amount of this from defendant * * * that the use of gas and gas firing equipment failed to produce the savings and economies in operation which the plaintiff represented would result therefrom, and as consequence the consideration of...