*1 22, 1989 Junе July Rehearing denied appellant. Kent, L. B. Levi,
Allen OF CLUBS ROLLER-ICE, et al. v. SKATING A89A0083. INC. GEORGIA, INC. 235) Presiding Judge. McMurray, (“Roller-Ice”) against brought Roller-Ice, an action Inc. Clubs”) allegedly (“Skating to recover Inc. agent misrepresentations were Clubs’ which roller-skating purchase Skat- a business. made ing Roller-Ice complaint allegations and filed Clubs denied the material summary judgment. motion for corporate During Vuillemin, officer Gilbert with summer president began Roller-Ice, Albert of Skating (“Sparkles”) roller-skating purchase Clubs, business by with a furnished Vuillemin was owned Clubs. purportedly reflected the “Profit and Loss Statement” which February through expenses Sparkles and September, report, Relying exe- on this first half of equipment building agreement land, which cuted a leаse comprised Sparkles later contract for provided, pertinent part, fol- the business. The by Buyer agreed that the Seller has lows: “It is understood and value of the business mаde or as to the no warranties operated ‘Sparkles,’ or known and the value inventory equipment improvements, buildings thereon, Buyer acknowledges fixtures, its own! that it has made and the independent investigation and! of the transaction into the economics anji Buyer specifically business, disclaims [value] upon any Seller, reliance profit statements statements! statements, have beer! which and loss or other statements primarily Buyer by overall furnished to Seller as fora! figure® any particular accuracy of thаn the content rather originally prepared having Seller foil thereon, said statements been only.” management purposes H internal and control operl began September, 1984,” “[A]round the 20th ating “Sparkles” part part in the firs® “in of December or the second report January daily ill were found [1985,]” at sheets ” space ‘Sparkles’ income for the busii “the office May through September ness “from of 1982” that was reported by Couey less than the income to Vuillemin in the “Profit attempt and Loss Statement.” Vuillemin contacted in аn the lease and contracts to obtain a refund paid by of monies Roller-Ice to Clubs for the contracts. compromise refused to the contracts and Roller-Ice refused to *2 payments Skating make further to Skating Clubs under the terms the of agreements. possession Sparkles. result, As a Clubs took of undisputed From evidence, this and other the trial court entered summary judgment Skating appeals. in favor of Clubs. Roller-Ice Held: ‘(f)raud provides
“Our Code that renders contracts at voidable injured party.’ ‘(p)arol the election of § And, OCGA 13-5-5. evi- writing originally dence shall be admissible to show that a either was subsequently ‘(f)raud, void § Further, became so.’ OCGA 24-6-8. accompanied by damage party always gives right defraudеd, to the injured party.’ misrepresen- of action § to the OCGA 51-6-1. ‘Willful upon fact, act, tation of a material made to another to person injury, give right acts to his will him a action. ... In knowledge deceit, all cases of the falsehood an essential constitutes representation element of the tort. A fraudulent or reckless of facts as they equivаlent not, deceive, true when are if intended to is to a of their . . .’ del falsehood. OCGA 51-6-2.” Mazo (366 333). Sanchez, 120, SE2d judice, showing The evidence in the case sub that over- Skating stated the аnd that Clubs’ business Sparkles, lied on this information in genuine sufficient to raise a issue of material fact as to fraud. None- argues theless, in Clubs that the disclaimer clause pressing contrаct forecloses Roller-Ice from its for fraud and claim figures deceit on the based reflected the “Profit and Loss Statement.” “ personal property injured ‘Where the has been subject the false and fraudulent the seller as to the ordinarily thereof, has an election whether to rescind the contract, article, deceit, and sue tort for fraud and article, whether contract, to affirm the retain the and seek misrepresentation.’ Nichols v. the fraudulent Williams (98 (1) (203 659).” City Pontiac, Inc., 95 Ga. SE2d v. Gard- “ depending ner, ‘However, uрon ultimately pursued, presence which of the two actions is merger may underlying [or disclaimer] clause in the contract be de- party terminative as If has to successful оutcome. the defrauded not rescinded but has elected affirm he is to to recovery pre- merger [or disclaimer] contract and the clause will (Cit.) recovery. hand, hе does rescind If, on the other his vent prevent merger recov- disclaimer] clause will [or Leasing Thrasher, ery theory. Co. v. [Potomac .’ . . under a tort 210)].” Sanchez, App. App. dеl Mazo 886-887 perspective supra. from this that Ga. argues genuine whether it as to of material fact remains that issue option contracts. rescinded the lease and ! dе- at the instance “A be rescinded promptly, rescind, frauded; but, must order restore to the restore or offer to any it if is of of the contract he has received virtue whatever § 13-4-60. value.” OCGA discovering that, after Vuillemin testified In the case sub in- lower
the income records which come figures provided by he contacted than those contract and offered Clubs and “offered Mr. just [Roller-Ice] be- if refund him he didn’t want to do testimony in an af- we cheated.” Vuillemin reinforced this cause were discrepan- “brought deposed fidavit, income] [the wherein he (1) Refund him either Mr. and asked cies to the attention of initially paid $150,000.00 [Roller-Ice the lease and *3 option Roller- contracts] declare between the contracts void, Inc., Ice, Inc., null and thus everyone quo prior turning it existed to the execution to the status (2) renegotiate contracts; reflect the true the contracts to of the figures.” ground contract on “Where a who is entitled to rescind a representations, of ma full fraud or false and who has advisedly freely case, does tеrial circumstances of the recognition transaction, in man or acts which amounts to a repudiation conduct ner of the inconsistent with a originally impeachablе, acquiescence, though and, the! amounts to unimpeachable equity. If a contract! contract becomes upon! ground mistake, must, seeks to discovery it on the of fraud or avoid purpose to it.I facts, and adhere of the at once announce v. Gibson contract.” Otherwise can not avoid or rescind such Alf (5) (132 442) . ord, SE 673 the con* In the Rоller-Ice’s offer to case sub recognition ora affirmative tracts with Clubs amounted an thereby cutting contracts, avoid or re-1 off Roller-Ice’s 161 Alford, Gibson Ga. scind the cоntracts. See lease Corp., Thompson supra, v. Growers Fin. Ga. (1) (174 192). Consequently, having election, Rollerl made its SE by merger contrae* Ice is bound or disclaimer clause pro* allege Statement” on the “Profit and Loss and cannot reliance prior vided to the execution of the contract. See (1) (244 Compare Condios, Driver, Inc. v. Alpha Kappa Bldg. Corp. Kennedy, Psi 580), purported where the could have discovered the fraud by diligence before the execution of the sales It contract. follows that grаnting summary judgment the trial court did err in in favor Skating Clubs. Judgment Carley, Beasley, J., J., concurs. concurs affirmed.
specially. Judge, concurring specially.
Beasley, judgment I concur advanced, but not for the reason having conclusively is based on the record shown fact that the al- legedly affirmed the contract. is true that if that plaintiff-buyer relegated case, were the would be to a suit for breach cоntrol, contract disclaimer would and no would be recoverable. question presented buyer
However, a of fact is as to whether the by its actions or inactions affirmed the There contract. is evidence significant discrepancy, buyer promptly option, electing renegoti- and, contacted seller before offered to (which contract) original ate could be a rescission of the or rescind original outright, property, and recover the option money. buyer There is evidence alsо that after the this awaiting response, ostensibly initial offer and while seller’s the seller buyer by taking possession property. wrested the decision buyer Thus the evidence did not show аs a law that affirmed the contract and retained the which would have preclusion it to a suit for breach of contract dam- ages because of the disclaimer сlause. tort, such,
The suit sounds and the trial court found it to be concluding allegedly defrauding that the seller sum- was entitled to mary judgment conclusively by because it showed the disclaimer buyer’s profit provided clause that by reliance on the and loss statements justified. seller was not The affirmative absence of the fourth ele- *4 City ment Gardner, see OCGA 51-6-2 794) (1974), fn. 1 fatal this reason. July Campbell, appellants. W. Roland Separk, Grubbs,
W. Allen Adele