Cheney v. Powell, 88 Ga. 629

Cheney v. Powell

88 Ga. 629 | Ga. | 1892

Lumpkin, Justice.

The error assigned is the refusal of the court to sustain a demurrer to plaintiff’s declaration. The contents of the declaration will be found in the reporter’s statement. The grounds of the demurrer were, in substance : (1) That the declaration set forth no cause of action, and was vague, uncertain and indefinite. (2) That there was a misjoinder of parties, there being no allegation of any contract, agreement or conversation between plaintiff and the Lowrys, or that they did or said anything to contribute to carrying out the fraudulent scheme by which plaintiff' was damaged. (3) That the declaration does not allege plaintiff has been evicted from the premises, or kept out of possession by a better outstanding title. (4) That the declaration fails to show that plaintiff exercised any diligence in making the contracts, and consequently the doctrine of caveat emptor is applicable.

1. The first ground of the demurrer is not well founded. The allegations of the declaration cover all the elements which, under the code, §§2958, 3174, give 'a right of action. It states there were willful misrepresentations of material facts made to induce plaintiff to act, and upon which he did act to his injury. There is an additional element essential to an action for deceit, viz. want of knowledge by the plaintiff that the representations were false. It must be shown that he was deceived. 5 Am. & Eng. Enc. of Law, 318, 327; 1 Bige*633low, Fraud, 466. While this fact is not stated in express terms, it is clearly implied. Although it is not in so many words alleged that plaintiff was ignorant of the falsity of the representations made to him by Cheney and Strickland, it is alleged that he was ignorant of the fraudulent conduct of the Lowrys and of the conspiracy in regard to the lease until after suit had been instituted 'against Cheney and Strickland ; and this being true, it would necessarily follow that he was deceived by the representations of Cheney and Strickland. Besides, he alleges that he was defrauded by these representations, which implies that he was deceived by them, for he • could not have beeji defrauded if he had known the representations were false.

In support of this ground of the demurrer, it was contended here that this was really a suit to rescind a contract and recover money had and received thereon, and yet the plaintiff’ in his declaration made “no offer of restoration.” In a case where rescission is prayed for, the rule is that the plaintiff’ cannot claim to have his money back without restoring, or offering to restore, the fruits of the contract. This is not such a case. The action treats the contract as one into-which plaintiff was induced to enter by defendants’ fraud, and seeks to recover the damages thus sustained. Besides, there jp. really nothing to restore. The lease being fraudulent, void and valueless from its inception, and the defendant having no title or color of title, the plaintiff' obtained nothing. The perpetrators of the fraud had no equity which would entitle them to demand a tender of anything as a requisite to this suit. It would be a mere farce to require plaintiff to offer back the worthless paper, and he should be allowed to proceed with his case, accounting, of course, for whatever value, if any, he may have derived from the possession of the premises, or showing that there was none.

2. To the ground of the demurrer alleging a mis*634joinder of parties, it is sufficient to reply that the action is in tort, and the declaration alleges a conspiracy. In such cases it is optional with the plaintiff to sue all the conspirators or one of them only, and recover the entire damages from that one. Cooley, Torts, 124, 125, 133. It is argued that no privity between plaintiff' and the Lowrys is alleged, inasmuch as the plaintiff shows no contract, agreement or conversation between himself and the Lowrys. The allegation of conspiracy is sufficient to show privity. One who makes wilfully false representations to be fraudulently used by another as an inducement to a third to enter into a contract with the party repeating them, is as much guilty of a deceit as the latter, and is equally liable to the party deceived. A fortiori, where one executes a void contract fraudulently intending it to be used by another as a basis of a . contract with a third party, he will be liable to the latter, jointly with the person so using the void contract, if injury to the third person is thus occasioned.

3. Nor was it necessary to allege eviction. The action sounded in tort for the deceit, and not in contract. It is unlike a suit for a breach of warranty of title to land, which need not allege any fraud whatever in the defendant. This action is brought to -recover damages for a toi’tious injury fraudulently perpetrated on the plaintiff by deceitfully obtaining his money for something absolutely valueless, and so known to be by defendants when the wrong was done. 1 Bigelow, Fraud, 527 et seq.; Parham v. Randolph, 4 How. (Miss.) 435, 451.

4. The doctrine of caveat emptor does not apply where a fraud of this character has been committed. Certainly the perpetrators of a fraud should not be permitted to set up as a defence the plaintiff’s reliance upon their good faith and honesty. 1 Bigelow, Fraud, 528; Kerr, Fraud & Mistake, 81; Parham v. Randolph, supra.

Judgment affirmed.