53 S.E.2d 697 | Ga. Ct. App. | 1949
In the trial of an action for damages for fraud and deceit, where the plaintiff alleged that the defendant made a false and fraudulent representation that he owned certain real estate, for the purpose of inducing him to enter into a contract to purchase it, and that he relied on the representation and entered into said contract by reason thereof to his injury and damage, the evidence does not support a verdict for the plaintiff when it shows that no false representation was ever intended to be made by the defendant or the broker through whom the contract was negotiated, and that none was directed to be made by the defendant, and fails to show that the plaintiff relied on the representation alleged to have been falsely and fraudulently made.
1. The court did not err in overruling the demurrers to the petition as amended. The allegations stated a cause of action for fraud and deceit.
2. The evidence did not follow the allegations of the petition, however, and the court erred in overruling the general grounds, and the special grounds elaborating thereon, of the motion for a new trial. In the first place, the evidence did not warrant the finding that Mr. Stiles misrepresented to the broker that he owned the house. The evidence shows that, when the defendant first discussed the house with the broker, he stated only that he wanted to rent "his house." At that time he had no idea of selling it. There is nothing in the evidence to show that later when he spoke of selling "it," he remembered having referred to the house as his own or that there was any reason to believe that he had designedly referred to the house as his, when he was trying to rent it, for the purpose of misleading the broker or any prospective renter or purchaser of the house. The petition alleges that the broker was acting in accordance with instructions from the defendant in making the misrepresentation. There is *359
no evidence to support this allegation, and the defendant specifically denied it. A real-estate broker ordinarily is an independent contractor (1 Restatement of the Laws of Agency, 12 § 2), and under a contract merely to find a purchaser for property is not by implication authorized to make representations as to the title to property so as to bind the party with whom he has contracted. It cannot be said in this case that the broker intended to make a representation that the title to the house was in the defendant, by merely referring to it as the defendant's house; but even if it could be so held, the defendant would not be bound by it when he did not expressly authorize it and had no reason to think that such a representation would be made or acted upon. The contract which was signed in this case was first signed by the plaintiff. Ordinarily, contracts for the sale of property are binding on both parties. The plaintiff contends that the instant contract is not binding on the defendant. This contention does not support the plaintiff's theory of fraud for two reasons: (1) if the contract is not binding on the defendant, it is not binding on the plaintiff; and (2) the evidence does not show that the defendant made the representation that the house was his own with a view of making a sale contract therefor by which he could bind the purchaser and escape liability himself. The provisions of the contract itself are not representations inducing its execution. But even if they could be so regarded, this contract provided that the defendant would convey the property or cause it to be conveyed. This eliminated even an agreement that the defendant owned the property. Furthermore, there is no evidence that the so-called misrepresentation was relied on, in that it induced the execution of the contract by the plaintiff. Ordinarily, where one enters into a binding contract to sell certain described property, he is bound by the contract to convey whether he owned the property at the time he agreed to sell it or not, and there is nothing to indicate that the plaintiff knew at the time he signed the contract that it was not binding on the defendant, or that he would not have executed it just as readily if he had known that the defendant owned only a half interest. The mere fact that the plaintiff executed the contract is insufficient to show that he relied on the alleged representation and that it induced him to sign the contract. If the *360
contract is binding on both parties, or if they had signed one that was binding, the plaintiff might have been as well satisfied with a judgment for breach of contract against the defendant, whether he refused to comply with its terms because he owned the property and decided not to sell it, or because he could not comply because he did not own the full title. Furthermore, the plaintiff was not in the exercise of ordinary care and diligence and had no right to rely on the alleged representation.Browning v. Richardson,
The court erred in overruling the motion for a new trial.
Judgment reversed. Sutton, C. J., and Gardner, J. concur.Parker, J., disqualified.