1. Where in an action for fraud and deceit for concealment it is not alleged that the defendant concealed the truth, knowing or believing that the concealment would cause the plaintiff to act to his injury, and the truth was concealed by the defendant with the intention of causing the plaintiff injury and damage, the petition does not set forth a cause of action.
2. In the absence of an allegation that the real value of the house which the plaintiff sought to purchase was only $13,500 and that by reason of the defendant's concealment of the withdrawal of the offer the plaintiff was forced to purchase the house at a price of $15,000, the measure of damage is not the difference between the two prices.
DECIDED MAY 22, 1948.
In March, 1947, Wesley M. Jennings brought suit for damages against the Camp Realty Company. On April 15, the defendant filed its general and special demurrers. On December 22, the plaintiff amended his petition. Briefly, the petition as amended alleged: The defendant does a general real-estate business of buying and selling real estate, arranging leases, etc. He had for sale a duplex, owned by Mrs. Jeannette England, and advertised the property for sale. The plaintiff, after inspecting the premises, on October 28, 1946, made the defendant an offer of $13,500, and deposited $127.67 with the defendant as earnest
money. The defendant notified the plaintiff that the offer could not be accepted by the owner. On November 1, 1946, the defendant through its officer or agent, Mrs. J. Davis Camp, notified the plaintiff that the price of $13,500 was acceptable to the owner. On November 2, the plaintiff notified the defendant, through Mrs. Camp, that he would purchase the property if he could dispose of the home he owned at that time. On November 5, the plaintiff telephoned Mrs. Camp that he was ready to complete the transaction, and Mrs. Camp acquiesced and told the plaintiff that the necessary papers were being prepared. On the night of November 5, Mrs. Camp notified the plaintiff that the owner would not sell for $13,500. The plaintiff later learned that the owner had withdrawn her offer to sell for $13,500 on November 2. The defendant was under a duty to notify the plaintiff immediately of the withdrawal of the offer to sell for $13,500. As a result of the defendant's negligence in failing to notify the plaintiff, the plaintiff was damaged in the sum of $1500 because he, having sold his home, was forced to purchase the property from the owner at the price of $15,000, as he, having relied on the defendant, had no place to move his family and was forced to purchase a place for them to reside; the plaintiff would not have sold his home had the defendant promptly notified the plaintiff of the owner's withdrawal of her offer to sell for $13,500.
On January 17, 1948, the plaintiff again amended his petition, the amendment being allowed subject to objection, by adding the following allegations: During the week end of November 1, 2, 3, and 4, the plaintiff was in communication with Mrs. Camp each day and at all times Mrs. Camp encouraged him to sell his property. The proximate cause of the plaintiff's damage was the conduct of the defendant's agent, Mrs. Camp, in encouraging the plaintiff to sell his property, when she knew the owner would not sell for $13,500.
The defendant renewed its general and special demurrers to the petition as thus amended on the grounds that it set forth no cause of action; the measure of damage was incorrect; the allegation that the plaintiff was forced to sell his property was a conclusion of the pleader and did not set forth the manner or means by which the plaintiff was forced to sell his property; the
amendment of January 17 should be stricken, as the petition as amended December 22, did not contain enough by which to amend, and constituted an effort to set up a new cause of action: and the petition failed to allege any damage to the plaintiff. The defendant's demurrers were overruled and it excepted.
1. With reference to the contention that though the Camp Realty Company occupied no contractual relationship with the plaintiff on its own account, it owed the plaintiff a duty to notify him of the withdrawal of the owner's offer to sell her house for $13,500, we hold that in order for a cause of action to arise for fraud and deceit it must appear that the plaintiff concealed the withdrawal of the offer in the expectation that the plaintiff would, by virtue of the concealment, act in selling his house to his injury and damage, and that the defendant intended to deceive and injure the plaintiff by means of the concealment. Generally, only actual fraud will support an independent action for fraud and deceit (Penn Mutual Life Ins. Co. v. Taggart,38 Ga. App. 509, 144 S.E. 400), and this case does not fall within any exception to the rule, if there is any. The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. Code, § 105-302. An action for fraud and deceit must allege that the representation (or the concealment) was made with the intention and purpose of deceiving the opposite party (Brown v. RagsdaleMotor Co., 65 Ga. App. 727, 16 S.E.2d 176), and for the purpose of injuring him. 23 Am. Jur., p. 902, § 17. The defendant in this case was the agent of the owner of the house listed for sale, and not of the plaintiff. The deposit of earnest money with the agent made no change in the relationship between the parties because the agent had no authority to make a contract of sale. There was no contract binding the owner to sell for $13,500 and the owner could withdraw the proposal at any time before actual acceptance of it by a legally binding contract. The plaintiff was charged with knowledge that the owner could withdraw the offer or sell to another at any time before a legal acceptance of the offer had been accomplished. The defendant had a right to assume, in
the absence of allegations to the contrary, that the plaintiff would not sell his house until he was sure he could buy another, as he secured himself by not agreeing to buy another house until he knew he could sell the one he already owned. The offer to sell at $13,500 was made and withdrawn a time or two and the defendant might have thought or hoped that it would still be permitted to close the deal with the plaintiff at that figure after all, even though the owner had again withdrawn the offer to sell at that figure. But at any rate, unless the petition alleges that the defendant concealed the withdrawal of the offer, knowing or believing that the plaintiff would sell his house because of the fact that he had not been notified of the withdrawal of the offer to sell at $13,500, and for the purpose of causing the plaintiff injury and damage, the petition does not set forth a cause of action. The court, therefore, erred in overruling the general demurrer to the petition.
2. The petition does not allege that the plaintiff sold his old house for less than its value and does not allege that the house purchased through the defendant was bought for a price in excess of its value. The $1500 alleged as damages is not, therefore, the proper measure of damages and the court erred in overruling paragraph 5 of the demurrer which attacked the measure of damage alleged.
It is not necessary to pass on the other questions raised.
Judgment reversed. Parker, J., concurs. Sutton, C. J.,concurs in the judgment.