*1 through ruling, exempted Revenue, administrative these items particular taxpayer present tax a until opinion issued, tax, it assessment did not enforce the is our applicable clearly the facts of this case show that the tax is prior administrative should not be followed. Judge I am authorized to state that Stolz in this dissent. DODGE, 48427. CITY INC. v. GARDNER. (defendant This an automobile dealer Clark, below) denying from the order his motion new trial plaintiff awarding punitive a verdict followed damages both actual and attorney complaint averring fees tort on a purchase fraud and deceit in of a used car. alleged having Plaintiff’s case was based on an his buy Dodge been induced to reliance express representation salesman’s it had not been when "wrecked” the fact was otherwise. This sad information shortly was obtained body after the as a of result motor and garagemen troubles which caused to take the car to repairs. Thereupon, he notified defendant dealer that he was rescinding purchase by simultaneously reason of fraud making an unconditional return of the automobile. When the accept delivery dealer refused to such made it a by informing place defendant he would at his residence where would remain would be used possession and where dealer was authorized to take thereof at any Subsequently repossessed by time. the car was purchase. which had financed
The dealer’s defense two-fold. One these defenses was
factual, a denial of conduct presented evidence, which defendant its which included a showing purchased that the dealer had the car from a finance company knowledge of it been wrecked. But since plaintiff presented concerning sufficient evidence fraud to create jury question the verdict adverse defendant constituted determination that the twelve "doctors doubt”1 aphorism by 1The legendary Logan famous Bleckley are the best doctors of doubt that we . know. .” by plaintiff buyer preferred that of the case made version had on this issue. plaintiffs signature to certain sales was that The second defense buyer’s These included a vehicle barred his action. documents express agreement an both of which contained order and a sales warranty that "No other and a statement disclaimer agreement, pertaining promise understanding kind *2 recognized.” also The latter document will be that the car was sold "as is.” Held: stated controlling principle is stated to be that "Where l.The purchaser personal property injured by has been the false and representations of the seller as to the matter ordinarily thereof, he has an election whether to rescind the deceit, contract, article, return the and sue tort for fraud and contract, article, or whether to affirm the demages resulting retain the and seek misrepresentation.” from the fraudulent (98 App. Pontiac, Inc., Nichols v. Williams 752 SE2d contract, in this case elected to rescind the return by car, and sue in fraud. He did this a written rescission accompanied by continuing If tender of automobile. he had applicable legal method, chosen the alternative principles then the by buyer which to a suit a defrauded who elects to affirm contract and retains the article are found in tin Rus Kendrick, App. Oldsmobile, Inc. 123 v. Ga. 679 SE2d It is the fact of this effective rescission and category which takes the instant case out of the of those decisions precluded recovery that a of an automobile is misrepresentations occurring during purchase for fraudulent negotiations subsequently signs containing when he a contract expressed except writing a disclaimer of warranties those exemplified by Chrysler-Plymouth Rogers-Farmer Metro v. 122) App. Barnett, 125 Ga. 494 and the cases cited by App. Clement, therein and v. 127 745 Andrews Motors Co. Ga. rulings premised upon All of those were in cases pointed the contract. This distinction was decision out in the most recent involving by buyer against a suit a defrauded a car dealer, Ga. 362) denied). (cert. page There at 31 is said Ragsdale Motors, "This case differs from Brown v. 176), where, because Ferguson Melson, R. Co. rely
the would have statement therein made but tender, to travel on total rescission he failed to do.” judice
Because the sub a suit contract as was not. Capital Co., in both situation Holbrook Auto. 288) Alpha Kappa Bldg. Corp. Kennedy, upon Psi (1) (83 by appellant 90 Ga. not relied it is us to deal with whether signature by obtained some fraudulent artifice which was discussed in those cases. portion 4 deal Enumerations court’s 3 and with a trial
charge concerning right rescission a contract. pertinent charge you "And I wilfully fact, deceive, of a material made knowledge, recklessly by opposite or party, acted by innocently, by ifor made mistake and acted on opposite party, legal Appellant’s objection constitutes fraud.” innocently, to inclusion of the words "if made mistake and opposite party.” acted on language objected represents only phrases
We observe the a few only complete regarded by from a the which was not but was *3 being plaintiffs as below unfavorable to cause to the plaintiff’s attorney objections. extent that noted six Defendant’s objection principle. sole to this We do not deem it to decide if it was erroneous or otherwise because it is clear that it was not harmful in the context of the entire case and the complete charge. Although employees, there was evidence from defendant’s
including knowledge salesman, the as to their innocence and lack of premised
of the been wrecked the case was plaintiff presenting testimony on actual with the fraud from the contradicting defendant’s mechanic the salesman that he had days prior purchase concerning informed him four to the car’s the 61). (T. totality charge condition. of the was aimed at imposing proving plaintiff. burden actual fraud (T. 142-143) places Thus in two 135-136 and T. in emphasized necessity plaintiff proving court of five requisites needed to establish cause of action misrepresentation. See McMichen v. Martin Burks 395). Inc., 128 Ga. Scienter is one of those charge, five whole, elements. taken as a submitted the true concerning them, issues of the and the law and while some yet criticism, see no we paragraphs to of the ground refusing trial, judgment and a new a reversal supports amply especially in the case evidence so where App. 608, Camp Carithers, sought set aside.” to be verdict (65 SE the correctness deal with to here undertake do not We Chevrolet, Inc. innocence, we note Central regarded cited supra, be a this to they cases, automobile two of its Zimmer, 86 Ga. Aderhold v. Register, Our Chevrolet, Inc. v. might be erroneous if this that even pleadings evidence in the consideration nevertheless objected to that the few words a whole as and the instructions nonprejudicial. It is harmless and considered must be these few words been misled not have that the clear dealing no harm has and therefore of innocence the issue with "Injury a new must be shown before as error been shown. App. 867, granted.” State, Brook v. trial will be 448); Malay 151, 156 Dixon, 127 Ga. § 81A-161. Ann. Code grossly verdict was contends the 3.The final enumeration therefore the evidence and and unauthorized excessive part jury. prejudice on the bias, and mistake resulted phase argument Appellant to limited the $2,627.10. The evidence amount to in the verdict which owing repossessed showed a balance $2000 company a finance automobile, borrowed from had been $600 by plaintiff, pay traded in owed on the car off the balance replace paid cents to a defective and some $27 within of the verdict was clear that the amount tire. It is thus range not disturb a verdict "The court will of the evidence. ” support it. [Cits.] Western evidence there is sufficient where App. 172, 174 Mathis, While & A. R. v. to the difference with reference true that there is no evidence is in value between measure price, price the market the contract *4 damages not an here as this was would not in tort after an effective the contract of action on rescission and continuing tender. Hall, J.,
Judgment Evans, J., P. concurs. affirmed. specially. 4, 13, September Argued December Decided Rehearing 19, December denied Young Ferguson, Tye
Webb, Parker, Jr., Webb, & Paul John Ferguson, appellant. for Tyrone Bridges, Smith, III, Smith, D.
Harmon & Archer M. for appellee. Presiding Judge, concurring specially to Division 1. There
Hall, always degree has been a confusion on the rule textbook "that one enter induced fraud to into a contract has an election may remedies in that he rescind the or recover 1154; for but cannot do both.” 120 ALR Bacon 482); Moody, Ford, Perrin, Co. v. SE Wade majority and the cases cited in the opinion. respect
All these citations are now moot with to the remedies personalty. vendee or vendor The to a has as contract for the legislature subject. has enacted law on the It called the provides: § "Uniform Commercial Code.” Code Ann. 109A-2—721 "Remedies material or fraud include all remedies available under this Article nonfraudulent breach. Neither rescission or a claim for rescission of the contract for sale rejection goods nor or return of the shall or bar be deemed damage remedy.” inconsistent with a 67 claim other See also 697, Sales, AmJur2d §
48525. PRICE v. et CHEEK al. dismissing This is an from an order Evans, plaintiffs petition in an election contest. County, Georgia. Plaintiff is an elector of Macon At the county 7,1972, election held November there were ten offices Republican contested both Democratic and candidates. county Plaintiff contests office, nine these elections for by Republican. office, coroner, tenth that of been won straight Republican Party testified that he voted a ticket. Returns the election were consolidated November 8, 1972, 10, and were certified on November 1972. This election contest was filed on November original complaint was amended four times. The lower court
required performed defendants, that service the 12 named