21 Ga. App. 634 | Ga. Ct. App. | 1918
Eobert Ducros, as transferee for value and before due, brought suit on a note against “S. D. Coleman, trading under the name and style of the Peoples Drug Store.” This note was given to the Georgia Show Case Company on January 14, 1914, and became due July 14, 1914. It stated that it was one of a series of notes given for certain shelving, counters, cases, etc., described, and contained a clause as follows: “It is agreed that title to the property mentioned shall remain in the Georgia Show Case Company until fully paid for in cash, and that a retention of the property forwarded, after 30 days from date of shipment, shall constitute an acceptance, he a conclusive admission of all representations made by or for the Georgia Show Case Company, and void all its contracts of warranty, expressed or implied.” The defendant denied liability, denied that the plaintiff was an innocent holder for value, and further pleaded that the goods were purchased on January 3, 1913 (1914?), at which time he was induced by the fraudulent acts of the representative of the
1. The court erred in overruling the demurrer, and the subsequent proceedings were nugatory, because:
(a) The plea does not show that even when the contract was signed there was such an emergency as would excuse the defendant from reading it, nor does the plea show any confidential or fiduciary relation between the parties, nor was the failure of the defendant to read the contract brought about by any misleading artifice or device perpetrated by the. opposite party, amounting to actual fraud, such as would reasonábly prevent the party signing the instrument from reading it. Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892); Radcliffe v. Biles, 94 Ga. 480 (3) (20 S. E. 359); Jossey v. G. S. & F. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664); Walton Guano Co. v. Copelan, 113 Ga. 319 (37
(b) In the plea there is no allegation that the defendant did not retain the property “after thirty days from date of shipment;” and the contract expressly provides that such retention “shall constitute an acceptance, be a conclusive admission of all representations made by or for the Georgia Show Case Company, and void all its contracts of warranty, express or implied.” Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (2) (72 S. E. 40), and cases cited; Walker v. Malsby Co., 134 Ga. 399 (67 S. E. 1039); Chapman v. Skellie, 65 Ga. 124 (3); Case Threshing Machine Co. v. Cook, 7 Ga. App. 631 (67 S. E. 890); City of Moultrie v. Schofield’s Sons Co., 6 Ga. App. 464 (65 S. E. 315). Nor is there in the plea any allegation that the defects were latent and concealed, and of such a character that their existence could not be ascertained within said thirty days, and that the seller, knowing of such defects, fraudulently concealed them from the defendant.
(c) The allegations in the plea as to fraud are not definite and specific, and are mere “glittering generalities.” “A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken on demurrer.” Carroll v. Hutchinson, 3 Ga. App. 60 (58 S. E. 309); City of Moultrie v. Schofield’s Sons Co., supra; Daniel v. Burson, 18 Ga. App. 35 (88 S. E. 745); Parrott v. Smith, 135 Ga. 339 (3) (69 S. E. 553).
3. Judging from certain statements made in the brief of counsel for the defendant, the allegations in the plea as to fraud, and the allegations as to the defects being latent and not discoverable by the defendant within 30 days from date of shipment, but known to the vendor and fraudulently concealed, are not as definite as the facts would authorize. We do not think it improper to call the defendant’s attention to the right to amend the plea at any time before the judgment of this court is made the judgment of the trial court. . Augusta Ry. Co. v. Andrews, 93 Ga. 706 (19 S. E. 713); Savannah, Fla. & W. Ry. Co. v. Chaney, 102 Ga. 814 (30 S. E. 437); Charleston & Western Carolina Ry. Co. v. Miller, 115 Ga. 93 (41 S. E. 353); Hillis v. Comer, 16 Ga. App. 653 (85 S. E. 931).
Judgment reversed.