1. The petition for damages, which alleged that the defendant came to the jail where the plaintiff was incarcerated and knowingly falsely represented to the plaintiff that his automobile had been wrecked, to induce the plaintiff to sell his automobile to him for less than its actual value, and that the plaintiff believed the representations and acted upon them to his injury by selling his automobile to the defendant for less than its value, while the plaintiff was confined in the jail and was not at liberty to get out and investigate the truth of the statement made to him by the defendant, thereby sustaining the loss or damage sued for as the proximate result of the false representations having been made, set out a cause of action for deceit, as against the general demurrer.

2. The petition set out a cause of action, and the court did not err in overruling the general demurrer thereto.

DECIDED OCTOBER 26, 1946.

Ellis Hart sued Guy Norris for damages in the City Court of LaGrange. The petition alleged substantially: that, on September 28, 1945, the plaintiff owned a certain automobile of the value of $1000, which he lent to Ed. Carter; that the plaintiff was arrested on a charge of drunkenness and placed in jail, and the defendant came to the jail where the plaintiff was confined and told him that his car had been wrecked and that it would require from $300 to $400 to repair it, but that he would pay him $300 for the car in its wrecked condition; that the statements made by the defendant were false and were a wilful misrepresentation of facts, made with the intention and design of the defendant to deceive and defraud the plaintiff, and the defendant knew that the statements were false; that the plaintiff had always regarded the defendant as his friend and trusted him as such and believed and acted upon the false statements by selling his automobile to the defendant for $300, believing at the time that it had been wrecked; that after the defendant had paid the plaintiff the $300, the plaintiff gained his release from jail and the defendant immediately carried the plaintiff and secured a bill of sale to the automobile from him and, as soon as the defendant learned that the plaintiff had discovered the falsity of his statements and was intending to rescind the sale, he sold the car to an innocent third party, thereby preventing plaintiff from recovering it. Judgment was sought in the sum of $700, and interest thereon.

The defendant demurred generally to the petition upon the ground that it did not set out a cause of action. The trial court overruled the demurrer, and the defendant excepted to that judgment.

SUTTON, P. J. (After stating the foregoing facts.)

The essential allegations of an action for deceit are: (1) that the defendant made the representations; (2) that he knew at the time the representations were false; (3) that he made them with the intention to benefit himself or to deceive and injure the plaintiff; (4) that the plaintiff acted upon the faith of the representations; and (5) that the plaintiff sustained the alleged loss and damage as the proximate result of the false representations having been made. Young v. Hall, 4 Ga. 95, 98; Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 S.E.2d 176). It should also appear that the plaintiff, in relying upon the representations, exercised ordinary diligence, where there was no confidential or fiduciary relationship between the parties. Sawyer v. Birrick, 33 Ga. App. 746 ( 127 S.E. 806). Also, see Tindal v. Harkinson, 19 Ga. 448, 450. That the defendant was or had been a friend of the plaintiff, would not alone create a relation of trust or confidence between them. Code, § 37-707; Dover v. Burns, 186 Ga. 19, 26 ( 196 S.E. 785).

The defendant contends that the petition did not set out a cause of action because it failed to show that the plaintiff exercised any diligence in ascertaining the truth of falsity of the representations, or any reason for his failure to do so. Questions of fraud and the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected himself by the exercise of proper diligence, are matters which usually should be submitted to a jury, and the court will not solve them on demurrer, except in plain and indisputable cases. Stovall v. Rumble, 71 Ga. App. 30, 35 ( 29 S.E.2d 804). Also, see Thompson v. Bank of Arlington, 44 Ga. App. 686(2) (162 S.E. 647); Georgia Fruit Growers v. Vaughn, 45 Ga. App. 17 (2) ( 163 S.E. 221); Holt v. Gloer, 44 Ga. App. 685 ( 162 S.E. 663); Briesnick v. Dimond, 33 Ga. App. 394 (1) ( 126 S.E. 306).

We can not say as a matter of fact that the parties to this case had an equal opportunity of ascertaining the truth or falsity of the representations made by the defendant, or that the plaintiff failed to exercise proper diligence in not investigating to find out whether or not his car had in fact been wrecked; for the representations were not made by the defendant as statements of his opinion, but were made by him as statements of fact, and the plaintiff was not at liberty to go and personally investigate the truth of the representations, as he was incarcerated in jail. Whether the plaintiff was in the exercise of proper care and diligence in failing to request the jailor, or other officer, or some friend or acquaintance, if one was available, to investigate the truth of the representations, would be a question for the jury.

The cases cited and relied on by the plaintiff in error are distinguishable on their facts from the present case and do not authorize or require a different ruling in this case from the one made herein. In Tindal v. Harkinson, supra, the complainant was on the premises involved, and alleged no reason why he did not examine the land himself. In Sawyer v. Birrick, supra, the safe had in fact been damaged and nothing was alleged to show that the plaintiff was in any way prevented from ascertaining the extent of the damage or that the means for his obtaining such knowledge were not easily at hand; while, in the present case, the plaintiff's car had not been wrecked and the plaintiff was confined in jail where he was not at liberty to personally investigate the truth of the statements made by the defendant. The other cases cited by the plaintiff in error are likewise distinguishable on their facts from the present case.

The allegations of fraud in the petition were sufficient to withstand the general demurrer; a cause of action was set out; and the court did not err in overruling the general demurrer.

Judgment affirmed. Felton and Parker, JJ., concur.