Rosenthal v. Gordon

Evans, P. J. (After stating the foregoing facts.) The plaintiff’s action is not one óf covenant, but an action founded upon fraud. He bargained for a definite lot of land, with the dimensions given in the deed as qualified by the words “more or less.” Where a lot of land is sold in a body, as containing a certain area “more or less,” and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. Walton v. Ramsey, 50 Ga. 618. But where the vendor in the consummation of the sale is guilty of actual fraud in representing the area, the rule is different. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41). It is charged in the present case that the vendor’s representation at the time of the sale as to the width of the lot was not only false, but false within the knowledge of the vendor, and was acted upon by the vendee to his injury. This is a charge of actual fraud. Emlen v. Roper, 133 Ga. 726 (66 S. E. 934). The plaintiff charges that the vendor’s agent not only knowingly and falsely represented the width of the lot, but also fraudulently stated the legal effect of the words “more or less,” representing that this elastic expression was not intended to extend more than a few inches, whereas the shortage was more than five feet. All the negotiations were made through a real-estate agent, who was the son-in-law of the defendant, and she is bound by the conduct of her agent in the consummation of the sale. The case comes to us on demurrer, and we must take the plaintiff’s allegations as true; the substance of which is, that the defendant, with intent to defraud him, and with the knowledge that the lot was of less dimension than expressed in the deed, falsely represented its width, and when he [686] inquired as to the meaning of the words “more or less” he was told that they were intended only to apply to a slight variation, not exceeding a few inches. If the plaintiff was fraudulently induced tc buy a lot of less size than what the agent falsely represented it to be, he is entitled to recover damages for the deficiency. Judgment reversed. All the Justices concur, except Fish, G. J., absent.