92 Ga. App. 214 | Ga. Ct. App. | 1955
Code § 105-302 reads: “Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.” Code § 96-203 reads: “Concealment of material facts may in itself amount to a fraud—■ ... 2. When, from any reason, one party has a right to expect full communication of the facts from the other.” Code § 37-703 reads: “Misrepresentation of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitutes legal fraud.”
An interesting decision in connection with the issue now being considered will be found in Foster v. Sikes, 202 Ga. 122 (42 S. E. 2d 441). While that case is not on all fours as compared to the facts in the case now before us, it is analogous to the case at bar in many respects. That case was carried from the Court of Appeals to the Supreme Court by certiorari, arid the Supreme Court reversed the decision of the- Court of Appeals and discussed the case fully. In Beavers v. Williams, 199 Ga. 113, 128 (33 S. E. 2d 343), the Supreme Court said: “Section 37-702 provides: ‘Fraud may be actual or constructive. Actual fraud consists in any kind of artifice by which another is deceived.’ Section 96-202, which was doubtless patterned after the statement in Smith v. Mitchell [6 Ga. 458], provides: ‘Fraud may exist from misrepresentations by either party, made with design to deceive, or which does actually deceive the other party.’ It is clear that the gravamen of the offense is the deceit which is practiced.” We call attention to
The court did not err in overruling the general demurrers of the defendant.
Judgment affirmed.