Opinion
17449.
ARGUED APRIL 10, 1951.
DECIDED MAY 15, 1951. REHEARING DENIED JUNE 13, 1951.
Equitable petition. Before Judge Andrews. Fulton Superior Court. January 23, 1951.
Norman I. Miller, for plaintiff.
Bertram S. Boley, Paul Webb Jr., and Harold Sheats, for defendants.
The petition in this case, as amended, does not state a cause of action for equitable relief against the defendants who interposed demurrers.
No. 17449. ARGUED APRIL 10, 1951 — DECIDED MAY 15, 1951 — REHEARING DENIED JUNE 13, 1951.
Mrs. Teres Robertson brought an equitable petition against George C. Panlos, Hugh N. Echols, and Mrs. Ida Mae Echols. The defendants, Hugh N. Echols and Mrs. Ida Mae Echols, filed general and special demurrers to the petition, and the trial court sustained the ground of general demurrer contending that the petition, as amended, did not set forth a cause of action against them. The case comes to this court on an exception to that judgment. The petition seeks relief against Panlos, individually, as to several transactions, but there is no judgment of the trial court in connection with these portions of the petition.
The petition, as amended, as a basis of the relief sought against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, alleged in substance as follows: The plaintiff is a Hungarian and is unable to read English. The defendant Panlos and his wife formerly lived in two rooms in the plaintiff's house at 127 Clarke Street, S.W., in Atlanta. The defendant Panlos, in talking to the plaintiff about buying some property on Marietta Road, told her that, if she would furnish $800, which with his $200 would make $1000 as the down payment on the property, he would pay the monthly payments and take care of everything else to be paid about the place, and that he would repay her the $800. In the month of January, 1950, the defendant Panlos sent for the plaintiff to come to his restaurant in the City of Atlanta, and when she arrived there Panlos stated to her that "these are the agents to see about selling the place," referring to them as Hilley and H. B. Schumpert, and that they had the papers to sign. "Several papers were put before her to sign by said H. B. Schumpert, which she was unable to read as she can not read English and did not read such papers nor were the same read to her before she signed the same in said restaurant, and she was not given any of said papers then signed; that said H. B. Schumpert was then and there the agent of and acting for said defendants, Hugh N. Echols and Mrs. Ida Mae Echols, and that, in placing before plaintiff and telling her to sign the purported sales contract hereinafter referred to without reading to her or causing the same to be read to her or making known the contents to her, the signature of plaintiff thereto was by said Schumpert fraudulently procured; that said trick, artifice, and collusive scheme by said Schumpert and defendant Panlos, who conspired to defraud plaintiff by procuring her signature to said purported sales contract, was calculated to deceive and mislead, and did deceive and mislead, plaintiff into her signing the said purported sales contract; that she was not told and did not know at time of signing of any provision being in the papers signed relative to her Clarke Street home." It was only when her attorney procured a copy of the paper signed by her that she became aware that the contract of sale contained the following provision: "Upon the sale of No. 127 Clarke St. S.W. by the purchaser, one-half of the proceeds from said sale to be applied to reducing the loan covering No. 1968 Marietta Road, N.W.. " On or about January 31, 1950, Panlos had the plaintiff bring the $800 to him, saying that he would put it in the bank and draw a check for the amount. The next day, February 1, 1951, he had the plaintiff come to his restaurant and go with him to the real estate agent's office. There she was told to sign several papers, none of which was read to her, and she did not know the contents of the papers, being unable to read English. At the time of signing the papers on February 1, 1950, which she was told by the agent of Hugh N. Echols and Mrs. Ida Mae Echols to sign, the plaintiff did not know that she was signing a deed to secure debt which obligated her to pay $6500, nor that a deed was being made to her and Panlos. There appears of record in the office of the Clerk of the Superior Court of Fulton County a deed dated February 1, 1950, wherein Hugh N. Echols and Mrs. Ida Mae Echols are named as grantors, and the plaintiff and Panlos are named as grantees, a copy of which is attached to the petition as an exhibit. There also appears of record a deed to secure debt dated February 1, 1950, wherein the grantors are the plaintiff and Panlos, and the grantee is Mrs. Ida Mae Echols, which recites that it is made to secure an indebtedness of $6500.
The prayers of the original petition seeking relief against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, were: that the contract of sale be set aside and declared to be null and void; that the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, be required to surrender and deliver up for cancellation the copy of the contract of sale held by one or both of them; and that they be enjoined and restrained from taking any steps or instituting any legal action in connection with the contract of sale. By amendment it was prayed: that the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, be required to surrender and deliver up the deed to secure debt made by the plaintiff and Panlos to them; that Panlos be required to surrender and deliver up the warranty deed made by Hugh N. Echols and Mrs. Ida Mae Echols to the plaintiff and Panlos; and that the plaintiff have judgment for $800 against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, being the amount delivered by the plaintiff to Panlos, and by Panlos paid to the Echols.
"While a demurrer admits facts properly pleaded, it does not admit a fraud charged, except as the facts establish or constitute fraud." Miller v. Butler, 121 Ga. 758 (3) ( 49 S.E. 754); Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746 ( 28 S.E. 991); Jones v. Robinson, 172 Ga. 746, 747 (3-c) ( 158 S.E. 752). A general allegation of fraud is insufficient. The complainant must show where the fraud exists, and issuable facts must be charged. Anderson v. Goodwin, 125 Ga. 663, 669 ( 54 S.E. 679). Allegations of a pleading are to be construed most strongly against the pleader, and the demurrer admits only the facts that are well pleaded and not legal conclusions of the pleader. Lee v. City of Atlanta, 197 Ga. 518, 520 ( 29 S.E.2d 774).
Applying the foregoing principles to the petition, as amended, it did not set forth a cause for equitable relief, when stripped of all conclusions as to fraudulent acts or conduct of the alleged agent of the defendants, Hugh N. Echols and Mrs. Ida Mae Echols.
An essential element of an action for rescission of a contract by reason of fraud is injury to the complaining party. In this case the plaintiff does not allege that the sale price of the property was unfair. She claims to be damaged because of a provision in the contract of sale which seeks to subject one-half of the sale price of her home on Clarke Street, in the event she should sell such property, to the payment of the indebtedness on the property purchased from Echols.
The plaintiff alleges that the agent of the Echols, in placing the contract of sale before her and telling her to sign the contract, without reading it to her, causing it to be read to her, or making known the contents to her, thereby fraudulently procured her signature; that she could not read the English language, and did not know what was in the papers she was signing, and did not know that there was a provision in the contract concerning her Clarke Street home. She makes no other charge of fraud or collusion against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, except in general terms.
Counsel for the plaintiff cites a number of cases from this court and the Court of Appeals where a distinction is indicated between the diligence required of a person who is able to read and one who is illiterate. ( Stoddard Mfg. Co. v. Adams, 122 Ga. 802, 50 S.E. 915; Baker v. Patton, 144 Ga. 502, 503, 87 S.E. 659; Dover v. Burns, 186 Ga. 26, 196 S.E. 785; Lewis v. Foy, 189 Ga. 596, 6 S.E.2d 788; W. P. Brown Sons Lumber Co. v. Echols, 200 Ga. 284, 287, 36 S.E.2d 762; Davis v. Joyner, 27 Ga. App. 132, 107 S.E. 551). In each of the cases cited the plaintiff was able to read, and it was held that the petition did not state a cause of action. The statement in each case in regard to the plaintiff not being illiterate was made to illustrate his lack of diligence. None of the cases cited lays down any rule as to the diligence required of a person unable to read the English language, since that question was not before the court for determination. Counsel for the plaintiff has not cited any case where a petition was said to state a cause of action for the rescission of a contract solely on the ground that the plaintiff was unable to read the English language, and that the defendant did not make known the contents of the contract to the plaintiff.
While the inability of a plaintiff to read the English language would be a circumstance which should be considered in determining whether or not he has been defrauded, the fact of such inability is not of itself sufficient to authorize the rescission of a contract. In order to charge fraud, the person pleading illiteracy must show that the defendant made false representations, or that the defendant concealed the truth when there was a duty on him to disclose the truth.
In the present case no confidential relationship is shown between the plaintiff and the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, or their agent, requiring any disclosure to the plaintiff; nor is any other fact asserted which would require such disclosure. It is not alleged that any misrepresentations were made to the plaintiff as to the contents of the papers she signed. She does not assert that she thought she was signing other papers, but states that she did not know what papers she was signing. It is not shown that she inquired of the agent of the Echols as to the contents of the papers she signed, or that the agent even knew that she could not read the English language. From her allegations it would appear that she willingly signed the papers presented for her signature, without any effort to discover the nature of the contract.
"If a party, by reasonable diligence, could have had knowledge of the truth, equity shall not relieve." Code, § 37-211. "Ignorance of a fact, due to negligence, shall be equivalent to knowledge, in fixing the rights of parties." § 37-116. See also King Hamilton v. Mobley, 150 Ga. 256, 257 (5) ( 103 S.E. 237); Georgia Railroad Bank Trust Co. v. Liberty National Bank Trust Co., 180 Ga. 4 (4-c), 17 ( 177 S.E. 803); Cooper v. Aycock, 199 Ga. 658, 668 ( 34 S.E.2d 895); Toms v. Knighton, 199 Ga. 858, 862 ( 36 S.E.2d 315); Alder v. Leopold Adler Co., 205 Ga. 818, 826 ( 55 S.E.2d 139).
Under all the allegations of the plaintiff's petition as amended, she showed no diligence in ascertaining the nature of the contract she was signing, and equity can not relieve her of its consequences. The court properly sustained the general demurrer of the defendants, Hugh N. Echols and Mrs. Ida Mae Echols.
Judgment affirmed. All the Justices concur.