Summary
In Ray v. Isakson, 191 Ga. 610, supra, it is said: but since "it does not appear that the petitioner offered to rescind the contract when he discovered, or by the exercise of ordinary care should have discovered, the alleged representations by the defendant to be untrue, or why the defendant fraudulently prevented the inclusion of the representations in the written contract, or why plaintiff was forced to rely on the alleged false statements, it was not erroneous to sustain a demurrer thereto and to dismiss the action."
Summary of this case from Roley v. CoffeyOpinion
13543.
FEBRUARY 14, 1941.
Petition for injunction, etc. Before Judge Pomeroy. Fulton superior court. August 28, 1940.
Vester M. Ownby, for plaintiff.
J. Herbert Johnson, for defendant.
Where a purchaser of real estate enters into a written contract of purchase with the seller, the writing containing no representations or warranties except "It is agreed that the vendor shall furnish good and marketable [title] to said property and purchaser shall have a reasonable time in which to investigate;" the vendee making a down payment of cash, and executing notes for the balance; and the vendee brings suit against the vendor, setting forth the above facts, and further that the seller made certain false and fraudulent representations to him concerning the character of the improvements thereon, the materials and workmanship; that the dwelling-house thereon is worthless and untenantable; the petition praying for cancellation of the outstanding notes, for injunction preventing the transfer of the notes, for an accounting, and for judgment for the amount already paid, for other money expended on said house, and for the expense of moving into said house; but it does not appear that the petitioner offered to rescind the contract when he discovered, or by the exercise of ordinary care should have discovered, the alleged representations by the defendant to be untrue, or why the defendant fraudulently prevented the inclusion of the representations in the written contract, or why plaintiff was forced to rely on the alleged false statements, it was not erroneous to sustain a demurrer thereto and to dismiss the action. Browning v. Richardson, 181 Ga. 413 ( 182 S.E. 516); Stone v. Moore, 75 Ga. 565; Couch v. Crane, 142 Ga. 22 ( 82 S.E. 459); Kendall v. Wells, 126 Ga. 343 ( 55 S.E. 41); Arthur v. Brawner, 174 Ga. 477 ( 163 S.E. 604); Brannen v. Brannen, 135 Ga. 590 ( 69 S.E. 1079).
Judgment affirmed. All the Justices concur.
No. 13543. FEBRUARY 14, 1941.
H. G. Ray, in his suit against A. Isakson, made the following allegations: In November, 1938, he entered with the defendant into a contract for the purchase of a house and lot in the City of Atlanta, on the representation by the defendant that it "was a good house, suitable to his needs, that same was built under the supervision of the Federal Housing Administration, that it was inspected by their agents, that they were experienced house-builders, that said inspectors of the Federal Housing Administration were efficient house-builders, that they were experienced engineers in building dwellings, that all material and workmanship was supervised and inspected by the Federal Housing Administration agents, that said house was built according to the specifications of the Federal Housing Administration, that all material was inspected before it was put up, and that said house was built of good material, cured and ready for use; that it was free from defects;" that on these representations the petitioner, after entering into the contract of purchase, a copy of which was attached to the petition, went to the office of the Jefferson Standard Mortgage Company and signed notes aggregating the sum of $2900, payable to said company, being the loan secured on the property by the Federal Housing Administration, and signed additional "side notes" payable directly to the defendant, over and above the $2900 loan, made a "down payment" of $350, and moved into the house; that when it rained the house leaked, that the wind would blow in at the corners of the house around the window and door-jambs, etc., causing the house to be cold, uncomfortable, and worthless for the purpose for which it was purchased; that he learned that all the representations of the defendant as to the durability, comfort, highclass material and workmanship were false, and that the defendant knew they were false when he made them; and that the plaintiff had been defrauded out of money. He prayed, that the defendant be enjoined from transferring the notes given to him, and from collecting them until the final termination of this action; that an accounting be had between the parties in order to determine the exact amounts due to each, and that the plaintiff have judgment against the defendant for $762, representing his down payment and amounts paid to the Jefferson Standard Mortgage Company on his notes to that company.
The defendant demurred generally and specially. The court sustained the demurrer and dismissed the action, and the plaintiff excepted.