25 Ga. App. 334 | Ga. Ct. App. | 1920
Lead Opinion
(After stating the foregoing facts.)
No title passes to the vendee where an executed sale of personal property has been induced by actual fraud on the part of the seller. Johnson v. Harley, 121 Ga. 83 (48 S. E. 685), and cases there cited. “Fraud voids all contracts.” Civil Code (1910), § 4254. “Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party; and in the latter case such misrepresentation voids the sale. . . Such misrepresentation may be perpetrated by acts as well as words, and by any artifices designed to mislead.” . . Civil Code (1910), § 4113.* “ Concealment of material facts may in itself amount to a fraud . . where one party knows that the other is laboring under a delusion with respect to the property sold or the condition of the other party, and yet keeps silent,” or “ where the concealment is of intrinsic qualities of the article which the other party, by the exercise of ordinary prudence and caution, could not discover.” Civil Code (1910), § 4114. “Where one party to a contract of sale knows that the other is laboring under a delusion or mistake with respect to a material fact affecting the value of the property, and not only keeps silence with respect thereto, but, by artifice, adds color and credence to the delusion or mistake, he is guilty of fraud equivalent to an express misrepresentation.” Marietta Fertilizer Co. v. Beckwith, 4 Ga. App. 245 (1) (61 S. E. 149).
While the fraud must arise out of a false representation of an existing fact, such representation may at the same time be a warranty. Larey v. Taliaferro, 57 Ga. 443; Dye v. Wall, 6 Ga. 684; Newman v. Claflin Co., 107 Ga. 89, 93 (32 S. E. 943); 14 Am. & Eng. Ency. Law (2d ed.), 168. While a breach of warranty will not annul an executed sale (Civil Code of 1910, § 4136), yet where
Where the plaintiff contracts to buy one thing and the vendor delivers to him a thing entirely different, there is no contract of sale as respects' the property actually delivered, and therefore no passing of the title to such property. In Varley v. Whipp (1900), 1 Q. B. 513, “the plaintiff agreed to sell and the defendant to buy a reaping machine, which the defendant had never seen, and which the plaintiff stated to have been new the previous year, and to have been used to cut only fifty or sixty acres. The machine was delivered and shortly afterwards the defendant wrote complaining that it did not correspond with the plaintiff’s statements. After some further correspondence the defendant returned the machine. In an action to recover the price: Held, that there was a contract for the sale of goods by description, within the meaning of the Sale of Goods Act, 1893, s. 13, and therefore, by that section, there was an implied condition that the goods should correspond with the description, that there had been no acceptance of the machine by the defendant, within the meaning of s. 35, that the property had not passed to the defendant, within the meaning of s. 17, and the plaintiff was not entitled to recover.” Channell, J., in the opinion, said: “The case turns on a fine point, namely, whether the words used by the seller with regard to the machine were part of the description, or merely amounted to a collateral warranty. If the property in the machine passed prior to July 2 [the date upon which the buyer undertook to re
The trial Judge erred in granting a nonsuit, and properly overruled the defendant’s general demurrer to the petition.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.
Concurrence Opinion
Jenkins, P. J.
While I concur in the Judgment arrived at in this case, the reasons which control such a conclusion do not appear to altogether coincide with the views expressed by the majority members of the court, especially in the first division of the
In the instant case the contract was not for the purchase of a particular car, but merely for a particular kind of car. The defendant obligated himself to furnish the plaintiff a new car of a certain make and designated model and at a specified price. The contract itself, thus complete in every essential detail, was not induced by any sort of fraudulent representation. No misstatement of. any existing fact induced the making of the contract. According to the plaintiff’s evidence it was upon the subsequent pretended fulfillment of the defendant’s obligation that fraud was practiced upon him. He is' really not seeking to rescind a contract fraudulent within itself, but has set up a fraudulent breach in its subsequent execution, whereby he, the buyer, was wrongfully deceived into an acceptance which, for this reason, he contends is invalid. While,, under the law, a mere breach of a contract executed by delivery and valid acceptance does not afford good ground for a rescission, still an acceptance which has itself been induced by fraudulent means and deceitful practices should not preclude his right to a rescission. In other words, in order for the acceptance to be binding, as such, upon the purchaser, it too must have been freely and voluntarily made, and must not have been brought about by the practice of fraud.
It is possible to go further than is required in this case, and say that an acceptance on the part of the purchaser is an altogether different thing from a tender on the part of the seller. It may often happen that the seller necessarily transfers physical possession of the goods from himself to the buyer in what amounts to nothing more than a tender. This I understand to be the theory upon which the cases of Cohen v. Lashy, 102 Ga. 846 (30 S. E. 531), and Armsby Co. v. Shewmake, 113 Ga. 1086 (39 S. E. 473), were decided. In the first case the goods were shipped C. O. D., and were immediately rejected upon opportunity to inspect. In the latter case it is expressly stated that no acceptance had been made. But if upon such a tender the seller, with opportunity to inspect, as in this case, accepts the goods, as was done here, even though they contain latent defects of which he was entirely ignorant, he thereupon loses all right to rescind and recover back the