Barnett v. Adams

164 Ga. 18 | Ga. | 1927

Gilbert, J.

The original petition filed by Barnett against Adams has the appearance of having been drawn with the idea of meeting any and all contingencies. It therefore can not be described as being purely a suit for damages, breach of contract, obtaining goods by means of fraud and misrepresentation, specific performance, or injunction; but rather as intending to include all of such actions. Fairly construed, we think that the petition, praying for injunction incidentally and for good measure, really sought damages for breach of the contract by Adams. -There was no demurrer to the petition, in so far as the record discloses. The case proceeded to trial, and the court nonsuited the plaintiff. Subsequently the plaintiff moved a reinstatement of the case, and the question is whether the judgment overruling that motion was error. Counsel for the defendant frankly admits that the plaintiff “proved the contract as alleged, the delivery of the goods as alleged and of the leased premises.” In other words, performance of his contract by Barnett was shown. The plaintiff introduced in evidence deeds showing the facts set out ’ in the statement as to Adams’ title, from which the jury would have been authorized to find that Adams did not own the fee-simple title to the land, and therefore could not have given plaintiff a merchantable title in fee simple. The evidence submitted would also have authorized the jury to find that Adams’ grantor, Reeves, had only a life-estate with the remainder interest in Reeves’ minor children. The evidence showed that Reeves ineffectually endeavored to obtain the fee, but his deed to Mrs. Alexander and her deed to Reeves wholly failed to accomplish that result. It further appeared from the evidence that Barnett had repeatedly demanded a compliance with the terms of the contract on the part of Adams, and that Adams had failed to comply. We think that under the evidence the jury would have been authorized to'find a breach of the contract on the part of Adams, for which Barnett was entitled to rescission and compensatory damages. This being so, it was error to refuse to reinstate the case.

We do not overlook the contention of defendant’s counsel that the suit is one “in fraud and deceit,” and that it is fatally lacking in proof of the knowledge of falsity on the part of the defendant. Notwithstanding some language used in the petition alleging fraud and misrepresentation on the defendant’s part, we think the petition set out a cause of action, which, being supported by evidence, would authorize the plaintiff to recover damages on the theory that under the evidence introduced by plaintiff, nothing more appearing, the defendant did not and was unable to comply with his part of the contract.

Judgment reversed.

All the Justices concur.