By admission of counsel for the plaintiff in error the petition in this case does not sound in contract but rests upon the tort of fraud and deceit.
“In Georgia the essential elements of a cause of action for the common-law tort of deceit based upon fraud have been stated to be: . . . (4) the speaker’s knowledge of its falsity or ignorance of its truth; . . .”
Doanes v. Nalley Chevrolet, Inc.,
The petition is lacking at least in the essential averment that the defendants had actual knowledge of the defective mechanical condition of the automobile sold to the plaintiff. The petition alleges that the defendants “knew or should have known the condition of the car” and “knew or should have known that said car was worthless for the purpose they sold it to this plaintiff.” ■ These allegations assert at most a constructive knowledge on the part of the defendants and this is not enough.
Where alternative allegations of knowledge are attacked by general demurrer: (1) the petition is sufficient to withstand attack
where the duty to know arises from the relationship;
(2) but the petition must capitulate to the demurrer
where the duty does not arise by reason of the relationship but arises only after actual knowledge. Hillinghorst v. Heart of Atlanta Motel,
The petition having alleged only constructive knowledge by the defendants of the falsity of their representations where an allegation of actual knowledge is essential, the trial court properly dismissed the petition on general demurrer.
Judgment affirmed.