From Casetext: Smarter Legal Research

Cosby v. Asher

Court of Appeals of Georgia
Mar 21, 1947
41 S.E.2d 793 (Ga. Ct. App. 1947)

Opinion

31539.

DECIDED MARCH 21, 1947.

Action for damages; from Fulton Superior Court — Judge Hooper. December 3, 1946.

Mitchell Mitchell, for plaintiff.

Dunaway, Riley Howard, for defendant.


The court did not err in sustaining the demurrer and dismissing the petition for any of the reasons assigned.

DECIDED MARCH 21, 1947.


A. G. Cosby sued W. T. Asher. A general demurrer was filed by the defendant, and was sustained. To the judgment sustaining the general demurrer and dismissing the petition the plaintiff excepted. The material parts of the petition read:

"1. The defendant W. T. Asher is a resident of Fulton County, Georgia.

"2. During the month of November, 1945, petitioner read an advertisement in the Atlanta Journal which offered a filling station business for sale. A copy of said advertisement is attached to and is made a part of this petition and is marked Exhibit A.

"3. Petitioner was interested in acquiring a place of business to earn a living.

"4. Petitioner went to see the agent who had advertised the property, and was informed that there was a four (4) year lease on the property described in the advertisement and that this lease could and would be transferred to the purchaser.

"5. A copy of the actual lease or contract of rental on the property so listed and so advertised, is attached to and is made a part of this petition and is marked Exhibit B.

"6. The lease set forth as Exhibit B is not recorded.

"7. The statement as to the length of and transferability of the said lease was false, and was made with the intent to cause petitioner to purchase the property advertised as described above.

"8. The defendant W. T. Asher had never observed the covenants in the lease which read as follows: `Lessor and lessee shall have joint use of any and all driveways lying between the service station property and lessor's laundry property, and it is agreed that customers of either business shall have the use of such driveway at said point. Lessee agrees to paint the service station building at least once each year, using one coat of paint thereon, unless lessee shall be advised in writing by lessor that lessor deems it unnecessary to so paint said premises. Lessee agrees to keep said premises clean and attractive in appearance at all times.'

"9. The defendant W. T. Asher had conducted the station in such a manner that the lessor had already decided to declare the lease at an end, at the time when defendant was negotiating to sell the business to plaintiff.

"10. Petitioner did not know these facts and in particular had no means of knowing that the lessor H. C. Hendricks had already decided to declare the lease at an end on account of the failure of W. T. Asher to observe the covenants of the lease.

"11. While the negotiations for a sale of the lease and the properties on the land were in progress, the lessor, H. C. Hendricks was not in the county and plaintiff could not consult him.

"12. W. T. Asher assured petitioner that on Hendricks's return, a proper transfer of the lease would be made.

"13. Acting on these representations the petitioner paid W. T. Asher $2000 for the business.

"14. Petitioner moved into the premises and began operating the filling station on November 16, 1945.

"15. H. C. Hendricks, the lessor, returned to the county on or about December 1, 1945.

"16. On or about January 1, 1946, H. C. Hendricks notified W. T. Asher and petitioner that he had declared the lease at an end because of the failure of W. T. Asher to observe the covenants of the lease. A copy of said notice is attached to and is made a part of this petition and is marked Exhibit C.

"17. The items of fixtures and personal property which were sold by defendant to petitioner had no value, if severed from the premises.

"18. Petitioner sold the articles of personalty and fixtures sold to him by W. T. Asher to H. C. Hendricks, the lessor, for $605.70 which amount is and was the fair market value of said fixtures and personal property, as located on the premises, and not severed therefrom.

"19. By reason of the facts set forth above petitioner has been damaged in the sum of $1394, being the actual difference between the purchase price of $2000 and the actual value of the properties sold to petitioner, and re-sold by him to H. C. Hendricks."

The advertisement mentioned bore date of November 13, 1945. The material portions of the lease, not set out in the plaintiff's petition, are: that the lease was originally between H. C. Hendricks and one George D. Stewart providing for a term of two years beginning on the 9th day of November, 1944, and ending on the 8th day of November, 1946; that the lease further provided that the lessee could not transfer the lease without the written consent of the lessor; that Stewart, on June 8, 1915, with the written consent of the lessor, transferred the lease in question to the defendant Asher. The lease further contained this material provision, under special stipulations: "Lessee shall have the right, upon expiration of this lease, to renew same for an additional term of three years, upon giving to lessor written notice of his intentions to renew, said notice to be served upon lessor at least thirty days before the expiration of this lease." There is attached also as an exhibit to the petition, a letter dated December 29, 1945, written by counsel for Hendricks to Asher, giving notice to Asher to vacate the premises within thirty days because of the violation of certain stipulations in the lease on the part of Asher.

It will be observed that the petition is grounded on the law of fraud and deceit and is so treated by the parties, except the plaintiff contends also that the facts in his petition may as well be considered as an action for money had and received, or unjust "enrichment," of the defendant.


In our view, if the petition fails to set out a cause of action for fraud and deceit, the demurrer was properly sustained. Otherwise the petition should not have been dismissed on demurrer. Let us therefore gage the petition by the essential and necessary elements which must be alleged and proved in an action for fraud and deceit. The decisions of our court are clear and specific as to what these elements are: (a) that the representations were made by the defendant; (b) that they were knowingly and with design false; (c) that they were made for the purpose and intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing or past fact; (f) that the party to whom the false statements were made did not know that they were false; (g) that he relied on their truth and suffered a loss. See Code, § 105-302; Wooten v. Callahan, 32 Ga. 382; Brooke v. Cole, 108 Ga. 251 ( 33 S.E. 849); Goddard v. State, 2 Ga. App. 154 ( 58 S.E. 304); Rogers v. Sinclair Refining Co., 49 Ga. App. 72 ( 174 S.E. 207); Crozier v. Provident Life c. Ins. Co., 53 Ga. App. 572 ( 186 S.E. 719); Thigpen v. Harbison-Walker Co., 55 Ga. App. 397 ( 190 S.E. 378); Snows Laundry c. Co. v. Georgia Power Co., 61 Ga. App. 402 ( 6 S.E.2d 159); Brown v. Ragsdale Motor Co., 65 Ga. App. 727 ( 16 S.E.2d 176).

We will not enter at length into an analysis of the allegations of the petition as they apply to the principles of law involved in an action for fraud and deceit. It will be noted from the petition that it is alleged that the defendant falsely represented that he had a four year lease. Upon an examination of the lease as attached to the petition, the second year of the lease was still to run, when the plaintiff took possession of the filling station, with the exception of eight days. Then there was an optional three years' lease which the lessee could exercise by merely giving thirty days notice prior to November 8, 1946, that he did intend to exercise the option. Under these provisions we consider that the defendant did have substantially a four year lease at the time the plaintiff went into possession of the property. So there does not appear from the petition that the defendant in this particular made any false representations as to the duration of his lease. The petition further alleges that the lease could and would be transferred to the purchaser. This is clearly a representation meant to take place in the future and did not misrepresent and had no relation to the misrepresentation of an existing fact or a past event, — an essential element of fraud. It is elementary that no one has a right to rely on a statement of another as to what could and would take place in the future. The activities of life are too uncertain for anyone to depend on such representations. And the law recognizes no actionable right in the event one does rely upon such uncertainties.

There appears nowhere in the allegations of the petition any good reason why the plaintiff did not see the lease or talk to the lessor before he paid over his money and went into possession of the property without any inquiry on his part whatsoever as to the terms of the lease or the covenants of the lease or as to whether the defendant had complied with the obligations on his part. It does not appear that the plaintiff ever asked the defendant to show the lease to the plaintiff. It is true that the petition alleges that at the time the defendant was carrying on the negotiations with the plaintiff that the lessor had decided to declare the lease at an end on account of the failure of the defendant to observe the covenants. But the petition nowhere alleges that the defendant knew that the lessor Hendricks had so decided. We might in this connection concede that the defendant had not observed some of the covenants, yet if the petition does not allege that the defendant knew that on this account the lessor had decided to cancel the lease at the time of the negotiations in question, then the petition fails in this vital respect to set out a cause of action.

We are not unmindful that the petition alleges that the lessor Hendricks was out of the county and "the plaintiff could not consult him." It does not appear that the defendant knew Hendricks was out of the county. It appears from the petition that the lessor did return about December 1, 1945, which was only two weeks after the plaintiff went into possession. It does not appear from the petition that the lessor had the defendant's lease. The petition does not allege any good reason, in our opinion, why the plaintiff should have so hastily put his money in the filling station without making any kind of investigations. His petition shows on his part no sort of diligence. Sawyer v. Birrick, 33 Ga. App. 746 ( 127 S.E. 806); Miller v. Martin-Ozburn Realty Co., 18 Ga. App. 768 ( 90 S.E. 652); Rutland v. Parham, 32 Ga. App. 662 ( 124 S.E. 355); Miller v. Roberts, 9 Ga. App. 511 ( 71 S.E. 927); Brim v. Couch, 184 Ga. 310 ( 191 S.E. 94).

Neither does the petition allege any act on the part of the defendant which kept the plaintiff from making inquiry and observing for himself the terms of the contract. While the cases above cited are not, as it were, on all fours with the facts of the instant case, they illustrate the principle involved.

In our opinion the petition failed to set out a cause of action.

The court did not err in sustaining the demurrer and dismissing the petition for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.


Summaries of

Cosby v. Asher

Court of Appeals of Georgia
Mar 21, 1947
41 S.E.2d 793 (Ga. Ct. App. 1947)
Case details for

Cosby v. Asher

Case Details

Full title:COSBY v. ASHER

Court:Court of Appeals of Georgia

Date published: Mar 21, 1947

Citations

41 S.E.2d 793 (Ga. Ct. App. 1947)
41 S.E.2d 793

Citing Cases

Wiseman Baking Co. v. Parrish Bakeries

Under the foregoing Code section an action in tort for deceit must be grounded on actual fraud, and the…

Williams v. Dresser Industries, Inc.

As a second grounds for seeking dismissal, Defendant argues that the specific concealments and…