13 S.E.2d 394 | Ga. Ct. App. | 1941
The declaration in attachment, alleging that the seller of realty knowingly made material false representations to the purchaser about the property being sold, and that the purchaser, by a physical examination *420 of the property, could not have ascertained for himself the falsity of the alleged representations, and that he relied on and was induced by such representations to purchase the property in question, to his injury and damage in an alleged amount, set forth a cause of action. The court erred in dismissing the declaration on the general demurrer and the motion by the defendants.
Mrs. Ida Jones filed general and special demurrers to the declaration, and Roy Jones made a motion to dismiss the action. The court sustained the demurrer and the motion to dismiss. The exception is to that judgment.
We are of the opinion that the allegations of the declaration set out a cause of action, and that the court erred in dismissing the action. It was alleged that the defendants knowingly made certain false and material representations to the plaintiff about the property which they were proposing to sell to him, and that he, believing and relying on such representations, was thereby induced to purchase the property to his injury and damage as therein alleged. The Code, § 105-302, provides: "Wilful misrepresentation of a material fact, *422 made to induce another to act, and upon which he does act to his injury, will give a right of action." But the defendants contend that the declaration fails to set out a cause of action, because the plaintiff could have ascertained for himself the true condition of the property before buying it, without relying on the alleged representations of the defendants, and they cite authorities to the effect that when the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser fails to avail himself of such means, he will not be heard to say in impeachment of the contract that he was deceived by the representations of the seller. This is a well-settled principle of law, but it is without application to the facts alleged in the declaration in the present case, so far as rendering such declaration subject to general demurrer. The plaintiff here could not determine the sufficiency of the water supply, which was under ground and obtained by a pressure pump, by an examination of the premises. He alleged that the main inducement for him to purchase the property was that he might operate the filling-station and keep satisfactory tenants in the dwelling on the premises, and that an adequate water supply was necessary for both of these purposes. He alleged that the defendants knowingly made material false representations to him that the water supply on the property in question was ample for the purposes just mentioned, that he relied on such representations, and was induced thereby to purchase the property to his injury and damage. It was also alleged that certain other false and fraudulent representations concerning the property were made to the plaintiff by the defendants, as set out in the above statement of facts.
Under the allegations of the declaration the plaintiff, by a physical examination of the property, could not have ascertained or determined for himself the falsity of the alleged representations of the defendants. It was held in Griffin v. Butler,
Judgment reversed. Stephens, P. J., and Felton, J.,concur.