103 Ga. App. 75 | Ga. Ct. App. | 1961
1. A motion to dismiss a petition on the ground that it sets forth no cause of action is a motion in the nature of a general demurrer. Reid v. Sinclair Refining Co., 62 Ga. App. 198 (8 S. E. 2d 527). An assignment of error based on the sustaining of a general demurrer with the resultant dismissal of the petition, on the ground that the same is contrary to law, is sufficient. Greene v. Orr, 75 Ga. App. 673 (44 S. E. 2d 273). Accordingly, the motion to dismiss the bill of exceptions on the ground that there was no sufficient assignment of error is without merit. The remaining grounds of the motion have either been abandoned or are likewise insufficient to work dismissal of the bill of exceptions.
2. Fraud by which the consent of a party to a contract of sale has been obtained renders the sale voidable at the election of the injured party. Code §§ 96-201, 96-202. This is true in law as well as in equity. Nichols v. Williams Pontiac, Inc., 95 Ga. App. 752 (1) (98 S. E. 2d 659). The petition here seeks money damages because of alleged fraudulent misrepresentations inducing the plaintiff to sign a contract of sale for the purchase of an automobile. The action is for an amount equal to the consideration paid by such plaintiff. Since on proof of such fraud, the plaintiff has a right to rescind, and since the petition here shows such election on the part of the plaintiff, the petition seeks only money damages, and the addition of a prayer in the petition that the contract of sale “be set aside on the grounds of fraud” is not such a prayer
3. The petition alleges that on February 18, 1958, the plaintiff entered into an agreement with the defendant to purchase a Ford automobile at a time price of $4,141.04 less credits for a down payment and two automobiles traded in, leaving a balance of $2,546.10 to be paid in monthly instalments of $84.87; that the plaintiff made four such instalment payments; that because the Ford automobile was subject to various defects the defendant agreed to “give plaintiff another car of the same kind and make, to take the place of and be in lieu of the first car . . . your petitioner was to continue his payments as he had agreed under the first conditional-sales contract for the automobile which he originally purchased.” It is further alleged that when the second automobile was delivered he was required to> sign two papers represented to him to be merely receipts for the car, one of which he retained and one of which the defendant retained, and these documents were not in fact receipts but were a sales agreement and a conditional-sale contract for the second automobile showing a total balance due of $3,031.20 payable in monthly instalments of $84.20 each; that the plaintiff paid seven such instalments; that in May, 1959, the defendant repossessed the second automobile and not until that time did the plaintiff, who was uneducated and illiterate, learn that he had in fact signed a contract of purchase and not merely a receipt for the second automobile delivered to him.
We need not go into the question of whether the plaintiff shows any actionable fraud inducing him to sign the instrument which he seeks to have set aside, or the question of whether the petition affirmatively shows such lack of diligence in discovering and repudiating the fraud as would bar his recovery. In Southern Auto Co. v. Fletcher, 70 Ga. App. 299, 302 (2) (28 S. E. 2d 184) there was a single automobile involved, and the plaintiff sought to repudiate the second of two sale contracts relating to the same subject matter on the ground that the second contract, which was alleged to have been substituted for the first contract, was procured by fraud. It was ' there held: “Assuming for the sake of argument that the evi
Judgment affirmed.