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Complaint; from Lamar Superior Court-- Judge Willingham. September 10, 1949.
As against the general demurrer, the petition in this case stated a cause of action for fraud and deceit, and the trial court did not err in overruling the general demurrer.
This is a suit for damages filed in the Superior Court of Lamar County by Jack Paul against "Mrs. Elizabeth Grubb Perthus, alias Mrs. Elizabeth Grubb Pedian." The plaintiff alleged in his petition that he had known the defendant for a number of years and that at one time prior to the events immediately leading up to this suit he and the defendant had been engaged to be married; that in the latter part of 1948 the plaintiff lived in Boston, and that, without any solicitation on the plaintiff's part, the defending began writing him urging him to come to Lamar County, Georgia, stating that she had obtained a divorce from her fonder husband; that in the last week of 1948 the defendant came to Boston where she again represented to the plaintiff that her divorce from her immediate past husband was final and that she was then free to marry, and she and the plaintiff entered into a marriage agreement to the effect that the plaintiff would come to Lamar County, Georgia, in January, 1949, where the parties would be married; that the plaintiff kept his part of the bargain, gave up his job in Waltham, Massachusetts, and came to the defendant's home; that the defendant told the plaintiff that there would be a "slight delay" before they could be married, and she, by promises and excuses of one kind or another, all of which the plaintiff alleged in detail, continued to postpone the date of the marriage until on or about June 29, 1949, when the plaintiff left the defendant's house where he had been living after coming to Lamar County. The plaintiff alleged that, as a matter of fact, the defendant had not been divorced and was not legally competent to marry when she procured him to cone to Lamar County and that the plaintiff did not know this but believed that the defendant's representations as to her marital status were true, and that the defendant knew that her representations were false when she made them. The plaintiff alleged that as a result of the defendant's false representations he was induced to give up employment in Waltham, Massachusetts, from which he earned $3,848 per year; that he incurred expenses of $50 in traveling from Boston to Lamar County, Georgia; that he was induced to labor and work upon the premises of the defendant during the period of his stay there to the value of $40 per week, which was partially compensated for by the defendant furnishing him room and board and part of his wages all to the extent of $20 per week; and the plaintiff prayed for actual and punitive or exemplary damages in the amount of $7,500.
The defendant demurred generally to the petition on the ground that it set forth no cause of action, and be, cause it "shows that the alleged contract of marriage was made in the State or Commonwealth of Massachusetts, and if that is true the rights of the parties under said alleged contract will be determined and adjudicated under the laws of Massachusetts at the time said contract was made," and that under such laws the "right of action in Massachusetts for breach of contract of marriage was repealed and abolished." The defendant then set. out in the demurrer the statute lab of Massachusetts which purports to abolish causes of action for breach of contract to marry, and an excerpt from a case decided by the Supreme Judicial Court of Massachusetts construing the law. The defendant further demurred on the ground that the petition showed that the parties had entered into a contract to marry while one of the parties was still married to a third person, and that under the laws of both Georgia and Massachusetts such contracts are illegal and against public policy and that no legal rights arose thereunder to the plaintiff. The court overruled the demurrer and the defendant excepted.
363 (3) (108 S. E. 311), and citations." Henry Cotton Mills v. Shoenig & Co., 33 Ga. App. 467, 470, 471 (127 S. E. 238).
"The nature of an action is not determined by the designation of the pleader. It is, in fact, immaterial by what name he calls his suit or whether he gives it any name at all. The character and classification of an action depends upon the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the quality of the remedy invoked." Pennington & Evans v. Douglas, Augusta & Gull Ry. Co., 3 Ga. App. 665 (2) (60 S. E. 485); Malone v. Robinson, 77 Ga. 719 (2a); City of Albany v. Cameron & Barkley Co., 121 Ga. 794 (1) (49 S. E. 798). "When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other" (Code, 105-105); and "Where a petition can be construed either as a suit in contract or as an action for a breach of duty arising out of the contract, the latter construction will be adopted." Wall v. Wall, 176 Ga. 757 (2) (168 S. E. 893). See also Central of Ga. Ry. Co. v. Chicago Portrait Co., 122 Ga. 11 (2) (49 S. E. 727), and Henry Cotton Mills v. Shoenig & Co., supra. Under these rules of construction we think that it is clear that the plaintiff's petition must be construed as setting forth a cause of action in tort for fraud and deceit. It shows a right in the plaintiff and a violation of that right by the defendant from which certain damage to the plaintiff is alleged to have resulted, and there is a prayer for punitive or exemplary damages "by reason of wounded feelings and embarrassment and of aggravation in the act and intention of the defendant," which is only appropriate to an action ex delicto. Therefore, as we construe the petition in this case, the allegations sound in tort, making out a case for fraud and deceit, and the case is not one for breach of contract to marry, and it becomes immaterial to determine whether flu contract to marry, as alleged in the petition, was a binding contract for which a suit for a breach thereof could be maintained either in Georgia or in Massachusetts. For these reasons the trial court did not err in overruling the general demurrers.
Kennedy & Kennedy, contra.
Dobbs & Whitmire, for plaintiff in error.
Saturday May 23 06:12 EDT

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