Symmes v. Rollins, (No. 18924.)

• Decision Date: 13 December 1928
• Docket Number: (No. 18924.)
• Parties: SYMMES. v. ROLLINS.
• Court: Georgia Court of Appeals

39 Ga.App. 53

146 S.E. 42

SYMMES.

v.ROLLINS.

(No. 18924.)

Court of Appeals of Georgia,

Division No. 2.

Dec. 13, 1928.

(Syllabus by Editorial Staff.)

Error from City Court of Decatur; Frank Guess, Judge.

Action by N. M. Symmes against F. W. Rollins. Judgment for defendant, and plaintiff brings error. Reversed.

Poole & Fraser, of Atlanta, for plaintiff in error.

Wm. Schley Howard and E. G. Jackson, both of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. 1. A discharge in bankruptcy releases the bankrupt from all his provable debts, "except such as * * * are liabilities for obtaining property by false pretenses." Bankruptcy Act, § 17 (11 USCA § 35).

2. Where a contract is induced by the actual, moral fraud of one of the parties, his liability for property obtained under the contract may be enforced according to the terms of the contract, or the defrauded party may waive the contract and sue in tort for damages on account of the fraud. In the first event the liability of the debtor under the terms of the contract itself is a contractual liability, and a discharge in bankruptcy releases him therefrom. Ford v. Blackshear Mfg. Co., 140 Ga. 670 (4), 79 S. E. 576; Sanger Bros. v. Barrett (Tex. Civ. App.) 221 S. W. 1087. In the latter event the liability of the debtor is one arising in tort, for property obtained by false pretenses, and a discharge in bankruptcy does not release him therefrom. Donnelly Co. v. Milligan, 37 Ga. App. 530, 140 S. E. 918.

3. "The acceptance of a note from one who procures a sum of money by fraud, as an evidence of the debt thereby created, after the fraud had been discovered, does not take the debt out of the operation of this section, and, in a suit on the note, if the defendant pleads a discharge in bankruptcy, the plaintiff may set up fraud in his reply." Collier on Bankruptcy, 13 Ed. p. 616; Argall v. Jacobs, 87 N. X. 110, 41 Am. Rep. 357; Gregory v. Williams, 106 Kan. 819, 189 P. 932. In such a case the giving of the note does not amount to a settlement of the fraud, but is merely an acknowledgment of the tortious liability of the maker of the note, and evidence of the debt thereby created.

4. In the instant case, where the proof showed that the defendant had obtained various sums of money from the plaintiff pending an engagement to marry, which sums the plaintiff testified were advanced to the defendant because of the engagement to marry and because of her belief in his expressed purpose and intent to...