1. The allegations in reference to fraud in the procurement of the contract for the purchase of certain grape vines, to the effect that false and fraudulent representations were made as to what the grape vines would produce, if planted in Grady County, Georgia, the ease of cultivation, where and how the grapes produced could be marketed, and where money could be secured to finance the purchasing and planting of the vines, pertain to facts or opinions, the truth or falsity of which the purchaser alleging the same, a farmer living in the locality, apparently had equal means and opportunity with the seller of ascertaining; and when the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of such means, he cannot be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.

2. The warranty implied by law, that an article or articles sold are "reasonably suited to the use intended," refers, not to any particular intended use by a purchaser, even if such intended use is made known to the seller, but to any use for which the article or articles sold are commonly intended; and it was no defense, in impeachment of the written contract here involved, for the purchase of certain amounts of specifically named varieties of grape vines, to allege that there had been a breach of an implied warranty that the vines were suitable for the use intended by the purchaser.

3. The judge of the superior court erred in ruling that the judge of the city court improperly sustained the demurrers to certain parts of the amended answer to the petition, relating to fraud in the procurement of the contract, and to breach of an implied warranty.

DECIDED OCTOBER 6, 1950.

This case originated in the City Court of Cairo as an action by E. L. Love, "d/b/a The Love Orchard Vineyard Development Co.," against C. D. Nixon, to recover the agreed purchase-price of $400 for certain grape vines sold by Love to Nixon under a written contract, Nixon having refused to accept and pay for the vines, and Love having retained the same for Nixon. The judge of the city court sustained certain demurrers to parts of the answer of the defendant, and the case proceeded to trial before a jury. After hearing the evidence the judge directed a verdict for the plaintiff, and a judgment for $400 was rendered thereon. The defendant then applied to Grady Superior Court for certiorari, assigning error on the rulings on the demurrers, as preserved by exceptions pendente lite, the direction of the verdict, and the final judgment. The writ was sanctioned, no traverse to the answer of the trial judge was filed, and after a hearing the judge of the superior court held that the judge of the city court erred in certain of his rulings on the demurrers to the answer, and remanded the case to the city court for another trial. The plaintiff, then the defendant in certiorari, excepted to the order and judgment of the superior court, and brought the case to this court.

The petition in the City Court of Cairo was, in part, as follows: "2. Defendant purchased certain grape vines for plaintiff by written contract, a copy of which is hereto attached, marked Exhibit A, and made a part of this petition. 3. Said grape vines are described in said contract, and the purchase price of same is stated in said contract at $400.00. 4. Defendant has breached said contract and has refused to take said grape vines and pay for them. 5. Plaintiff has retained said grape vines for defendant, and is now entitled to recover from defendant the purchase price of same in the sum of $400."

The contract, in part, was as follows: "I, C. D. Nixon, do hereby authorize and request you to ship to me at Cairo, Ga., in November or December, 1947, ____ grape vines, varieties as follows; or as available: . . Concord 1900, Fredonia 100, . . which I agree and promise to accept and pay for at above point, and on date of your notification for delivery, waiving all exemptions of every description.

"It is mutually understood by the above company, or E. L. Love, being one and the same, and myself, that this is a two party contract not subject to cancellation without the mutual approval of both parties hereto. .

"Price per acre of 400 vines, $80.00. Total Amt. of bill C.O.D. $400.00. .

"Said first party obligates himself hereunder to second party to assist him in marketing the grapes which he might produce [under certain conditions]. . . Said first party's Comm. for said marketing service shall not exceed 4% gross, to be paid immediately after sale of grapes and collection for same will have been effected. Said second party is or will be, at liberty hereunder, to sell his own grapes. .

"It is understood and agree[d] to, under the above contract, that the grower under whose certificate said grape vines are shipped, shall be wholly liable for trueness to name and quality of said vines contracted for, and that nothing shall be considered a part of this contract except what is printed or written herein."

As finally amended paragraph 2 of the answer was, in part, as follows: "For further answer defendant shows that the alleged contract sued on was procured by the fraud of the plaintiff and is not binding on the defendant, in that prior to the execution of the same and in order to cause and induce the defendant to execute the same, the plaintiff knowingly made the following false and material representations as to the subject matter of said alleged contract, to wit:

"(a) That said grape vines or plants would produce grapes equal in quality and salability to the grapes known as the California grape; when in truth and in fact grapes produced from said vines and plants in Grady County, Georgia, were not equal in quality and salability to the California grape but were vastly inferior to said California grape and unsalable at any price;

"(b) That said grape vines or plants would produce grapes that would come on the market several weeks before the California grape and would sell better than the California grape; when in truth and in fact grapes produced from said vines or plants in Grady County, Georgia, come on the market [in] July at the same time as the California grape, and being vastly inferior cannot be sold in competition with said California Grape;

"(c) That both as eating grapes and for making wine the grapes produced by said grape vines or plants `were just as good as' the California grape; when in truth and in fact grapes produced from said vines or plants in Grady County, Georgia, are not salable as an eating grape on the market and are not suitable and salable as a wine grape for lack of acid, while the California grape is highly regarded and readily sold on the market both as an eating grape and for winemaking;

"(d) That there was a market in St. Petersburg, Florida, for all grapes that could be produced in Grady County, Georgia, from vines or plants such as were being sold by plaintiff; when in truth and in fact there is no market in St. Petersburg, Fla., where grapes produced from said vines or plants can be sold, and that there never has been such market;

"(f) That said vines or plants were as easy to cultivate as a crop of corn; when in truth and in fact said vines or plants were not as easy to cultivate as corn, but would require extensive and expensive pruning, fertilizing, plowing and spraying [at] a cost both in labor and money many times equal to that necessary to make a corn crop;

"(g) That said vines or plants when they came into production would on the average land in Grady County and under average conditions produce five tons of grapes to the acre; when in truth and in fact said vines or plants when they come into production in Grady County under average conditions and on average land do not and will not produce five tons of grapes to the acre but to the contrary produce not more than half that much;

"(h) That the banks in Cairo approved the buying of said vines or plants by the farmers of Grady County and that said banks would lend farmers money to buy them and put them in; when in truth and in fact neither of said bank[s] nor any official connected therewith had ever approved the buying of said vines or plants by the farmers of Grady County and had never made any promise or commitment of any nature whatsoever to anyone that they would lend farmer money to buy them and put them in;

"That with respect to each and all of the representations of the plaintiff as above set out, he the said plaintiff knew that the defendant was ignorant as to the planting and cultivation of grape vines and as to the production, growing and marketing of grapes, and that the plaintiff also knew that the defendant expected to plant and cultivate said grape vines or plants on defendant's farm in said county for the purpose of producing and growing grapes for the market commercially and at a profit; that the representations of the plaintiff as aforesaid, and each of them, were false and known by the plaintiff to be false at the time he made them, and that they and each of them were made by the plaintiff for the purpose of deceiving the defendant and inducing him to sign and enter into said contract, and that they and each of them did deceive defendant and did cause and induce him to sign and enter into said contract, and that but for said representations and each of them defendant would not have signed and entered into said contract."

In a subsequent amendment to the answer, identified in the petition for certiorari as Exhibit E, the defendant alleged "that the plaintiff breached his implied warranty in the sale of plants sued for, in that said plants sold and stored were intended to be used by the defendant, a farmer, and was so known to the plaintiff, for the purpose of growing grapes for market, and defendant shows that the grapes which would have been grown from said plants would have been wholly unsuited for market and it would have been impossible for the defendant to have successfully sold them on the market, in that said grapes would bruise and burst easily in picking and packing and would become soft and unsightly so that when such grapes arrived on the market it would be impossible to sell same for a sufficient price to pay expenses of growing and marketing, and by reason thereof said plants were wholly worthless to this defendant and were wholly unsuited for the purpose for which the same were being purchased by the defendant, as aforesaid."

The plaintiff demurred to the original answer on the grounds, among others, that the answer set forth no defense to the petition, that it set forth no allegations of fact which amounted to fraud in the procurement of the contract, and that it sought to vary the terms of a written contract by parol statements. These grounds of demurrer were renewed after the answer was amended, and additional grounds of demurrer were interposed. The grounds of demurrer in respect to paragraph 2 of the answer, after the paragraph was amended, were, in part, as follows:

"Said paragraph 1 of said amendment sets forth no facts which show fraud in the procurement of the contract sued upon, and sets forth no defense to plaintiff's petition.

"Subparagraph (a) . . sets forth no allegations of fact which show fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk. Further, it does not set forth the specific quality or salability of the alleged California grapes or the comparative quality or salability of the grapes produced from the vines described in the contract sued upon.

"Subparagraph (b) . . does not set forth any allegations of fact which constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk. Further, it does not set forth the time when the alleged California grapes come on the markets, nor the time when grapes produced from the vines described in the contract sued upon come on the market.

Subparagraph (c) . . does not set forth any allegations of fact which would constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talks. It further fails to set forth any specific facts in regard to the quality and salability of the grapes produced from the vines described in the contract sued upon which would show that such grapes were not suitable or salable as eating grapes or as wine grapes.

"Subparagraph (d) . . does not set forth any allegations of fact which constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk.

"Subparagraph (f) . . does not set forth any allegations of fact which constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk. Further, it does not set forth any specific extent of cultivation and expense in cultivating necessary for such grape vines.

"Subparagraph (g) . . does not set forth any allegations of fact which constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk.

"Subparagraph (h) . . does not set forth any allegations of fact which constitute fraud in the procurement of the contract sued upon, but only sets forth allegations of sales talk."

The trial judge, by his ruling on the demurrers to the answer, eliminated all portions of the answer appearing in this statement. The case went to trial before a jury on the issue of whether or not the plaintiff had properly stored and retained the vines for the defendant. This issue was determined in favor of the plaintiff by a directed verdict. The judge of the superior court, by his rulings on certiorari, in effect held that the judge of the city court erred in sustaining the demurrers to the portions of the answer herein stated, and the case was remanded for another trial in the city court for this reason.

SUTTON, C. J.

"Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation renders the sale voidable at the election of the injured party, though the party making it was not aware that his statement was false. Such misrepresentation may be perpetrated by acts as well as words, and by any artifices designed to mislead. A misrepresentation not acted on is not ground for annulling a contract." Code, § 96-202. But, "When the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller." Miller v. Roberts, 9 Ga. App. 511 ( 71 S.E. 927). Also, in this connection, see Dortic v. Dugas, 55 Ga. 485 (6); Wylly v. Gazan, 69 Ga. 506 (5a); Brim v. Couch, 184 Ga. 310 ( 191 S.E. 94); Dean v. Merchants Farmers Bank, 24 Ga. App. 475 (1) ( 101 S.E. 196); Clark v. Adams, 29 Ga. App. 496 (1) ( 116 S.E. 122); Elliott v. Dolvin, 34 Ga. App. 788 ( 131 S.E. 300); Thompson v. Bank of Arlington, 44 Ga. App. 686 (2) ( 162 S.E. 647), and cases cited therein. While it is true that the question of whether the person to whom the alleged false and fraudulent representations were made was negligent in relying upon such representations would ordinarily be a question for a jury, as was stated in the Thompson case, supra, and in Summerour v. Pappa, 119 Ga. 1 (5) ( 45 S.E. 713), if it is apparent from the pleading of a person relying on such false and fraudulent representations that he was negligent in so doing, and such pleading is properly attacked by demurrer, it is the duty of the court to so decide as a matter of law.

The allegations of paragraph 2 of the answer, as amended, including subparagraphs (a), (b), (c), (d), (f), (g), and (h) — in respect to representations as to what the grape vines would produce, if planted in Grady County, the ease of cultivation, where and how the grapes produced could be marketed, and where money could be secured to finance the purchasing and planting of the grape vines — pertain to facts or opinions the truth or validity of which should have been readily ascertainable to one such as the defendant, a farmer living in the locality. No reason why he could not ascertain the truth or validity of the representations is shown. The alleged misrepresentations do not appear to be matter which were peculiarly within the knowledge of the plaintiff. It does not appear that there was any emergency requiring the immediate signing of the contract and preventing any inquiry or investigation on the part of the defendant, nor does it appear that the defendant was in any way prevented from making such an investigation. Instead, it appears that the defendant chose to rely blindly on the representations. Under such circumstances, if the defendant did not avail himself of the means apparently available to determine for himself the truthfulness or falsity of the representation of the plaintiff, he should not be heard to say that he was deceived by such representations, for he was in reality deceived only on account of his own negligence, while dealing at arm's length with a stranger. On account of the apparent and unexplained negligence of the defendant in relying on the representations, the facts as alleged in that part of paragraph 2 of the answer as amended, as shown in the statement, fail to show fraud in the procurement of the contract as a defense to the action here involved.

2. "If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants that — . . 2. The article sold is merchantable, and reasonably suited to the use intended." Code, § 96-301. "While, in a contract for the sale of goods, words descriptive of the subject-matter are ordinarily to be treated as an express warranty, a warranty of this character will not, unless inconsistent therewith, exclude the implied warranty of the law, that the thing sold is possessed of no latent defects rendering it inferior as to the quality or unsuited as to the purposes common to the articles of the class described. But in such a case there is no implied warranty that the thing sold will be suited to the purposes of the buyer." Mayor Aldermen of Savannah v. United States Fuel Corp., 29 Ga. App. 573 (2) ( 116 S.E. 218). The ruling just quoted was in reference to a defense of the buyer that coal purchased as "Blue Gem R.O.M. [run of mine] coal" was not suitable for its intended use by the buyer. In the same connection, see City of Moultrie v. Schofield's Sons, 6 Ga. App. 464 (2) ( 65 S.E. 315); City of Jeffersonville v. Cotton States Belting Supply Co., 30 Ga. App. 470 (3) ( 118 S.E. 442); Kreutz v. McCray Refrigerator Sales Corp., 54 Ga. App. 679 ( 188 S.E. 838); Fay Eagan Co. v. Dudley Sons, 129 Ga. 314 ( 58 S.E. 826). It is clear from the rulings made in the above cases that the warranty implied by law, that the article or articles sold are "reasonably suited to the use intended," refers, not to any particular intended use by the purchaser, even if such intended use is made known to the seller, but to any use for which the article or articles sold are commonly intended. As was stated in the Kreutz case, "use intended" as it appears in the statement in the Code is not equivalent in import to "use intended by the buyer."

The written contract here involved shows an express agreement for the purchase of certain amounts of specifically named varieties of grape vines, and it purports to be complete within itself. No warranty appears therein to the effect that the vines would be suitable for any particular intended use by the purchaser. The defense as to a breach of warranty is, in substance, that there was a breach of an implied warranty that the vines were suitable for the use intended by the purchaser. Under the circumstances here shown and the law applicable thereto, no such implied warranty was in existence, and, accordingly, that part of the defense identified as Exhibit E in the petition shows no breach of an implied warranty.

3. The judge of the superior court erred in ruling that the judge of the city court improperly sustained the demurrer to those parts of the amended answer to the petition relating to fraud in the procurement of the contract and to breach of an implied warranty, as herein shown.

Judgment reversed. Felton and Worrill, JJ., concur.