Southern Store & Restaurant Equipment Co. v. Maddox

• Decision Date: 05 March 1990
• Docket Number: No. A89A1813,A89A1813
• Citation: 195 Ga.App. 2,392 S.E.2d 268
• Parties: SOUTHERN STORE & RESTAURANT EQUIPMENT COMPANY et al. v. MADDOX.
• Court: Georgia Court of Appeals

Page 268

392 S.E.2d 268

195 Ga.App. 2

SOUTHERN STORE & RESTAURANT EQUIPMENT COMPANY et al. v. MADDOX.

No. A89A1813.

Court of Appeals of Georgia.

March 5, 1990.

Rehearing Denied March 16, 1990.

Certiorari Denied April 20, 1990.

Elkins & Gemmette, James A. Elkins, Jr., Columbus, for appellants.

Charles C. Carter, Columbus, for appellee.

BIRDSONG, Judge.

Southern Store & Restaurant Equipment Company and Bobby Chesser appeal from a judgment against them, based on a jury verdict, in favor of Wylene Maddox on her fraud claim arising from the purchase of a restaurant. Appellants contend the trial court erred by denying their motions for a directed verdict at the close of the Maddox's case and at the close of the evidence and by denying their motion for judgment n.o.v. or in the alternative for a new trial. They contend that Maddox did not prove actionable fraud.

At trial Maddox testified that in the course of buying the restaurant, representations were made to her by Chesser and his agents about income from the restaurant, about the condition of equipment in the restaurant, including the air conditioning, and about water which had collected in the kitchen. In general, Maddox testified they represented the equipment's condition was excellent because the owner of the restaurant owned a restaurant equipment store and kept everything in good working order. They also said the restaurant took in around $500 a day. In particular, Maddox testified the seller's agent told her the restaurant was air conditioned, showed her the switch, and turned it on. Since it was a cool day, however, she could not tell how well it worked. She also testified she asked about water in the kitchen and was told that it came from a recent severe rain.

After Maddox purchased the restaurant, however, she found none of these things to be true. For example, when she turned on the air conditioning and it would not work, she found there was no compressor for it. Also, she later learned that the water in the kitchen came not from rain, but from water leaking from the freezer. Further, she testified generally that very little, if any, of the equipment worked properly, inter alia, the stove would not stay lighted, the sandwich table shocked anyone who touched it. Nevertheless, Maddox opened the restaurant and for the first few days made a reasonable income, but when the customers wanted air conditioning she could not supply, they stayed away. Consequently, Maddox, within approximately ten days of opening, sent Chesser a letter giving notice that she considered the contract broken.

Appellants contend that Maddox failed to prove actionable fraud because, even if her contentions about the equipment were true, Maddox could not rely blindly on their representations but must have used diligence to verify the status of the equipment, that any misrepresentations they might have made were mere "puffing," and finally, Maddox must have tendered the restaurant to them. Held:

1. In determining whether the trial court erred by denying appellants' motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. Union Camp Corp. v. Daley, 188 Ga.App. 756(1), 374 S.E.2d 329.

"A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50(a)(b)." Id. Viewing the evidence in that fashion, we cannot conclude that it demanded a verdict for appellants.

The evidence shows the sellers made at least two significant misrepresentations, to wit, that the air conditioner worked and the water was from the rain. Further, the evidence also shows the lack of air conditioning was the primary reason for Maddox' closing. " ' "Questions of fraud, the truth and materiality of representations made by a (seller), and whether the (buyer) could have protected [her]self by the exercise of proper diligence are, except in plain and indisputable cases, questions for the jury." ' [Cits.]"...