Appellee-plaintiffs brought suit against appellant-defendants, seeking to recover on a promissory note, interest and attorney fees. Appellants answered and raised the affirmative defenses of fraud in the inducement and accord and satisfaction. The case proceeded to trial. At the close of the evidence, appellees successfully moved for directed verdict. Appellants filed separate appeals which have been consolidated and which will be treated as companion cases for purposes of appellate review.
1. It is first urged that the issue of fraud in the inducement remained for jury resolution and that a directed verdict for appellees was accordingly erroneous.
Apparently, the note was given by appellants in connection with their purchase of certain property owned by appellees, but which was in imminent danger of being foreclosed by the holder of a deed to secure debt. The note from appellants to appellees was secured by a second deed to secure debt. The asserted misrepresentations which allegedly induced appellants into signing the note were statements concerning the possibility for re-selling the realty to certain named “prospects” at a profit and, also, statements concerning the future installation of a paved road and adequate sewer lines to serve the property, construction of which would result from appellees’ “in” with the county government. In fact, after appellants signed the note, the property was not purchased by any of the “prospects” and it was determined that the paving of the road and the installation of sewers would require an expensive personal outlay. It is undisputed, however, that at the time the note was signed, appellants knew that the property had not as yet been definitely “sold” to any of the “prospects” and that it was not yet served by paved road or by sewer lines.
“Fraud renders a contract voidable at the election of the injured party. [Cit.] The defendant may attack a contract in a court of law on the ground that it was procured by fraud. [Cit.] Tn order to show fraud and misrepresentation in the procurement of the contract as a defense to an action on the contract, it is not sufficient to show that false representations were made, which were known to be false and which were made with the intention to deceive. It must also be shown that the defendant exercised due care to discover the fraud and that he relied upon the false representations to his injury.’ [Cit.] Tt is well settled that fraud cannot form the basis of an action or a defense thereto, in the absence of any trust or confidential relationship, if it
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appears that the person relying on the fraud as a basis for the action or in defense thereto had equal and ample opportunity to prevent the happening of the occurrence, and made it possible through a failure to exercise proper diligence.’ [Cit.] . . . Representations under the general head of ‘dealer’s talk’ are regarded as mere commendations, ‘puffing,’ or expressions of opinion, and do not, though untrue, constitute false representations which will avoid a contract. [Cit.] The representations to support a claim must relate to an existing fact and not a future event, unless it be an event which the party making the representation knows will never occur. Mere broken promises, unfulfilled predictions, and erroneous conjectures do not meet this test. [Cits.]”
American Food Services v. Goldsmith,
The application of the aforesaid legal principles in the instant case demonstrates that the statement concerning the future prospects for the profitable resale of the property would not constitute a misrepresentation sufficient to avoid the contract. See generally
Boatman v. C. & S. Nat. Bank,
The same analysis would be applicable to the asserted misrepresentations concerning the availability and cost of road paving and sewer installation in the future as the result of appellee’s “in” with the county government. “Actionable fraud cannot be based on statements and promises as to future events [Cits.] ‘Fraud cannot
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be predicated upon statements which are promissory in their nature as to future acts.’ [Cits.]... Nor does actionable fraud result from a mere failure to perform promises made. [Cit.]”
Ely v. Stratoflex,
After a thorough review of the record, we find no evidence which would have authorized the submission of the issue of fraud in the inducement to a jury. The trial court did not err in granting appellees a directed verdict as to this defense.
2. Appellant Little also asserts that the issue of accord and satisfaction remained for jury resolution and precluded the grant of directed verdict to appellees as against him. The evidence demonstrates that, subsequent to appellants signing the note, there was an attempt to sell the property to another. The terms of the preliminary contract made provision for the holder of the first mortgage and appellees, as holders of the second mortgage, to accept certain installment payments from the prospective buyer as payments on their respective mortgages. In connection with this sale, appellant Little executed an agreement which he asserts was an accord and satisfaction of his further obligation on the note to appellees. That agreement contained the following relevant provision: “In consideration of [appellees] forebearing [sic] in the collection of a certain note which was in the amount of $200,000 and represented by a second deed to secure debt in favor of [appellees], and which is better described within the preliminary contract for the sale of realty (marked copy 1), the said [appellant Little] consents to the scheme of payment of the second mortgage or indebtedness represented by the note and deed to secure debt and agrees specifically that [he does] not consider this to be a novation of the contract between [appellees,] [himself] and [appellant]Marler which was a certain note for $200,000.00 and a certain deed to secure debt described in the preliminary contract for the sale of realty (marked copy 1.)” (Emphasis supplied.)
The agreement specifically states that payments to appellees from the prospective purchaser will
not
be considered as a novation of
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the note and that appellees will merely forbear collection on the note in return for those payments from the third party. “Forbearance” is defined as an “[a]ct by which creditor waits for payment of debt due him by debtor after it becomes due . . . Indulgence granted to a debtor.” Black’s Law Dictionary (4th Ed. 1951). See generally
Brantley v. Watt Bros. Co.,
Judgments affirmed.