Wilhite v. Mays

Decision Date13 May 1977
Docket NumberNo. 32092,32092
Citation239 Ga. 31,235 S.E.2d 532
PartiesSammie D. WILHITE v. E. Harold MAYS et al.
CourtGeorgia Supreme Court

Fulcher, Hagler, Harper & Reed, William C. Reed, Augusta, for appellant.

Jay M. Sawilowsky, Calhoun & Kernaghan, William C. Calhoun, Herbert E. Kernaghan, Jr., Augusta, for appellees.

JORDAN, Justice.

This court granted certiorari to review the ruling by the Court of Appeals in Division 3 of its opinion in Wilhite v. Mays, 140 Ga.App. 816, 232 S.E.2d 141 (1976), and particularly to consider the following language: "Therefore, in cases of passive concealment by the seller of defective realty, we find there to be an exception to the rule of caveat emptor, which exception is applicable to the instant case. That exception places upon the seller a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision."

While we affirm the ruling of the Court of Appeals that the jury was authorized to find a verdict for the plaintiff Mays, we are apprehensive that the rule stated by the Court of Appeals might be construed to be an exception to the general rule of caveat emptor in the purchase of realty without reference to the issue of fraud.

The present action was one for damages by reason of fraud. Code § 37-704 provides: "Suppression of a fact material to be known, and which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."

"When a vendee is induced to enter into a contract for the purchase of land by fraud of the vendor, when the vendee 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." Manget v. Cunningham, 166 Ga. 71(1-d), 142 S.E. 543 (1928). See: Southern v. Floyd, 89 Ga.App. 602(1), 80 S.E.2d 490 (1954); Hester v. Wilson, 117 Ga.App. 435(2, 3), 160 S.E.2d 859 (1968); Batey v. Stone, 127 Ga.App. 81, 192 S.E.2d 528 (1972); Whiten v. Orr Construction Co., 109 Ga.App. 267, 136 S.E.2d 136 (1964).

In the present case the jury was authorized to find the following: The residence and premises purchased by the plaintiff had serious defects, unknown to him, in that the...

To continue reading

Request your trial
54 cases
  • Richey v. Patrick
    • United States
    • Wyoming Supreme Court
    • October 18, 1995
    ...(absent allegation of fraud or misrepresentation of the condition of a house sold "as is," caveat emptor applies); Wilhite v. Mays, 239 Ga. 31, 235 S.E.2d 532, 533 (1977) (court expressed "apprehension" about an appellate court's rule that passive concealment was an exception to the rule of......
  • Gibson v. Home Folks Mobile Home Plaza, Inc.
    • United States
    • U.S. District Court — Southern District of Georgia
    • March 10, 1982
    ...he does not prevaricate. He simply keeps his mouth shut. Wilhite v. Mays, 140 Ga.App. 816, 817, 232 S.E.2d 141 (1976), aff'd, 239 Ga. 31, 235 S.E.2d 532 (1977); see Johnson v. Sherrer, 197 Ga. 392, 400, 29 S.E.2d 581 (1944) ("Fraud is exceedingly subtle in its nature."); King v. Towns, 102 ......
  • Williams v. Dresser Industries, Inc.
    • United States
    • U.S. District Court — Northern District of Georgia
    • May 4, 1992
    ...law may arise in a number of situations not involving a strict fiduciary or confidential relationship. See, e.g., Wilhite v. Mays, 239 Ga. 31, 32, 235 S.E.2d 532 (1977) (jury was authorized to find defendant/seller liable for fraudulent concealment of a condition of certain real property wh......
  • Layman v. Binns
    • United States
    • Ohio Supreme Court
    • February 24, 1988
    ...426 A.2d 856; Johnson v. Davis (Fla.1985), 480 So.2d 625; Wilhite v. Mays (1976), 140 Ga.App. 816, 232 S.E.2d 141, affirmed (1977), 239 Ga. 31, 235 S.E.2d 532; Bursey v. Clement (1978), 118 N.H. 412, 387 A.2d 346; Posner v. Davis (1979), 76 Ill.App.3d 638, 32 Ill.Dec. 186, 395 N.E.2d 133; L......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT