Mumford v. Mechanics Loan & Savings Co.

39 Ga. App. 204 | Ga. Ct. App. | 1929

Jenkins, P. J.

“Where a contract is induced by the actual, moral fraud of one of the parties, his liability for property obtained under the contract may be enforced according- to the terms of the contract, or the defrauded party may waive the contract and sue in tort for the damages sustained on account of the fraud. In the first event, the liability of the debtor under the terms of the contract itself is a contractual liability, -and a discharge in bankruptcy releases him therefrom. Ford v. Blackshear Mfg. Co., 140 Ga. 670 (4) (79 S. E. 576) ; Sanger v. Barrett (Tex. Civ. App.), 221 S. W. 1087. In the latter event, the liability of the debtor is one arising in fort, for property obtained by false pretenses, and a discharge in bankruptcy does not release him therefrom. Donnelly Co. v. Milligan, 37 Ga. App. 530 (140 S. E. 918).” Symmes v. Rollins, 39 Ga. App. 53 (146 S. E. 42). This being a suit on a contract which it is alleged was induced by the defendant’s fraudulent misrepresentations, in which the plaintiff sought to recover interest and attorney’s fees as provided by the contract, the case conies within the rule announced in Ford v. Blackshear, supra. The defendant’s plea of discharge in bankruptcy should have been sustained, and the verdict in favor of the plaintiff was not authorized. Accordingly, the judge of the superior court erred in overruling the defendant’s petition for certiorari.

Decided January 22, 1929. Rehearing denied February 20, 1929. Charles W. Anderson, for plaintiff in error. Burress & Dillard, contra.

Judgment reversed.

Stephens and Bell, JJ., eoneur.