Deibert v. McWhorter

Jenkins, P. J. (After stating the foregoing facts.) Where a petition alleged that the defendant was indebted to petitioner upon a contract for services, and that the defendant, by false and fraudulent representations, deceived her and caused her to make the contract and to perform the services for the defendant, and where the defendant specially demurred to the petition, on the ground that there was a misjoinder of causes of action, in that the plaintiff was proceeding ex contractu on the contract and ex delicto for deceit, etc., the defendant became committed to the proposition that the plaintiff had in fact proceeded both upon contract and upon tort. Consequently the plaintiff had the right to elect which cause she would prosecute; and, having elected to proceed in tort for the alleged deceit, she had the right so to amend her petition as to limit and conform the allegations of the petition to that cause. “Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action.” Civil Code (1910), § 4410. Thus, where the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which needs must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other’s statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking up the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth. Cheney v. Powell, 88 Ga. 629 (15 S. E. 750); Ryan v. State, 104 Ga. 78 (30 S. E. 678). The rule is different where the matters thus governing the contract speak for themselves to each of the contracting parties alike; as where a pur [805] chaser of real estate, with full opportunity to examine it, voluntarily relies upon the statements of the opposite party. Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353). The court did not err in failing to charge the jury that the plaintiff could not recover unless it appeared that she used ordinary care in investigating the truth of such material statements made by the defendant, before accepting them as true. Exception is taken to the following excerpt from the charge of the court: “Mere concealment of such a fact, unless done in such a manner as to mislead and deceive, will not support an action.” It is urged that such an instruction was unwarranted by the pleadings and proof, and was calculated to confuse the jury and injuriously affect the rights of defendant. The excerpt complained of is the latter portion of section 4410 of the Civil Code, which was given in charge in its entirety, as follows: “Wilful misrepresentation of material facts, made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to mislead and deceive, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.” The excerpt complained of could not in any event have any sort of operation except in favor of the defendant, and therefore could not have adversely affected his rights. “It was not cause for a new trial that the judge read in charge to the jury a code section part of which was applicable to the case under consideration and part not, it not appearing that the reading of the inapplicable part was calculated to mislead the jury, erroneously affected their verdict, or was prejudicial to the rights of the complaining party.” Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405); Sarman v. Seaboard Air-Line Ry. Co., 33 Ga. App. 315 (5) (125 S. E. 891). Moreover, as was held by this court in Rutherford v. Irby, 1 Ga. App. 499 (57 S. E. 927): “In an action of deceit growing out of wilful misrepresentations of material facts, made to induce another to act, and upon which he did act to his injury, it is not reversible error to charge that ‘if the defendant did not wilfully conceal from the plaintiff some fact which he [806] should have stated,' he would not be liable/ The affirmative wilful statement of a falsehood in reference to a particular matter necessarily includes the concealment of the truth as to that matter.” The evidence authorized the verdict, and it can not properly be set aside for any of the reasons assigned. Judgment affirmed. Stephens and Bell, JJ., concur.