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Fraud and deceit. Before Judge Pharr. Fulton Superior Court. June 10, 1955.
Edgar T. Scott filed an action for fraud and deceit against Fulton National Bank of Atlanta, alleging in substance: during the middle part of the month of March, 1953, the petitioner spoke with Peter Phrydas and James H. Angel who were at that time corporate officers of a corporation created in the State of Georgia known as Angel's, Inc.; during the conversation with the officers of Angel's, Inc., the petitioner was requested to invest in Angel's, Inc., and to become a stockholder; in connection with the proposed investment of funds by the petitioner, the officers of Angel's, Inc., suggested to him that he speak with the defendant, and more particularly with the said James C. Blythe concerning the financial status of the corporation, Angel's, Inc.; the petitioner advised the defendant, through its agent James C. Blythe, that he was interested in investing funds in Angel's, Inc.; the defendant, through its agent James C. Blythe, informed the petitioner that the defendant was well acquainted with the corporation and with its financial condition; the petitioner advised the defendant, through its agent James C. Blythe, that he was not well versed in financial affairs and was relying upon the defendant for advice and counsel concerning the proposed investment of funds in Angel's, Inc.; the defendant advised the petitioner, by and through defendant's agent James C. Blythe, that an investment of ten thousand dollars would afford requisite operating capital and that such investment would be, in the opinion of the defendant, a sound business investment; the defendant, by and through its agent James C. Blythe did then and there advise and counsel the petitioner to invest the sum of ten thousand dollars in the capital stock of Angel's, Inc.; the petitioner did on separate occasions in April of 1953 purchase $10,000 in common stock of Angel's, Inc.; on October 10, 1953, the corporation was placed in receivership by order of the Superior Court of Fulton County and its assets were insufficient to pay all of the debts of the corporation; petitioner shows that immediately after he had invested the sum of $10,000 in stock of Angel's, Inc., the assets of the corporation were insufficient to pay the outstanding debts thereof; the petitioner shows that the defendant, acting by and through its agent James C. Blythe who was at all times herein material acting for and on behalf of his principal, the defendant, and within the scope of his authority and in the course of his agency, has injured and damaged the petitioner in the amount of $10,000 by reason of its fraudulent conduct toward the petitioner; the fraud consisted in the defendant, by and through its agent making false representations to the petitioner as to the financial condition of Angel's, Inc., knowing full well at the time of making such representations that the same were false and untrue.
The trial judge sustained a general demurrer and dismissed the petition, and the exception here is to that judgment.
1. Stripped of its conclusions the petition alleges no more than that the bank's officer acting within the scope of authority vested in him by the institution represented to the plaintiff that ten thousand dollars would furnish the requisite operating capital for a corporation in which the plaintiff contemplated investing, that he considered the investment and advised the plaintiff to make it, whereupon the plaintiff without making any investigation, so far as the petition discloses, of the expediency of accepting the officer's advice bought stock in this corporation paying ten thousand dollars for the same.
It is true the petition does allege that the officer knew the Angel's, Inc., to be insolvent and that $10,000 would not pay the debts and obligations it then owed.
The petition does not allege sufficient facts from which it can be inferred that the officer of the bank did not consider the investment of $10,000 in Angel's, Inc., sound or that the $10,000 which the plaintiff paid for the stock did not furnish the corporation with requisite operating capital. While the opinion of the bank's officer that the investment in a corporation not entirely solvent was a sound or wise investment may indicate that he is not a man of astute business acumen, it does not show him to have been deceitful or dishonest. First Bancredit Corp. v. J. G. McKenzie Lumber Co., 65 Ga. App. 595 (16 S. E. 2d 191); Snows's Laundry & Dry Cleaning Co. v. Georgia Power Co., 61 Ga. App. 402 (6 S. E. 2d 159); Cosby v. Asher, 74 Ga. App. 884 (41 S. E. 2d 793).
2. There was no allegation that there existed any confidential relationship between the parties, or that there was any emergency or condition to prevent the plaintiff from making further investigation of the assets of Angel's, Inc. So far as the petition discloses this information was given gratuitously and no relationship existed which would entitle the plaintiff to rely upon the representations made by the defendant's agent; therefore the plaintiff was under the duty to prosecute his own inquiries in order to ascertain the true financial condition of Angel's, Inc. For an action for fraud and deceit to stand it must appear that the plaintiff used reasonable diligence to ascertain the truth and thus protect himself from loss. One of the essential elements of an action for fraud and deceit is the intent on the part of the defendant to deceive the plaintiff. Skinner v. Melton, 84 Ga. App. 98 (65 S. E. 2d 693); Watkins v. Mertz, 83 Ga. App. 115 (62 S. E. 2d 744).
We are not unmindful that ordinarily the question of diligence is for the jury. But where as in this case the petition does not affirmatively allege that the plaintiff was diligent or contain averments of facts from which his diligence may be reasonably inferred, the petition sets forth no issue to be passed upon by the jury.
The trial judge did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Smith, Kilpatrick, Cody, Rogers & McClatchey, A. G. Cleveland, Jr., contra.
Benjamin B. Blackburn, III, Walter W. Aycock, for plaintiff in error.
Saturday May 23 03:11 EDT

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