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Complaint; from Richmond Superior Court-- Judge Anderson. April 21, 1952.
Pleading are to be determined by their contents, and not by the interpretation which counsel, in argument, seek to give them. Accordingly, where, as here, the petition under consideration has already been held by this court on a previous appeal to state a cause of action for rescission of a contract based upon the fraud and deceit of the defendant, and where the contents of this petition are substantially the same as that of a previous action in which the plaintiff was nonsuited, it is error to dismiss the case on the ground that the plaintiff has made inconsistent elections as to the affirmance or repudiation of the contract in issue.
This case is here for the second time. The petition was formerly dismissed on general demurrer and that judgment reversed by this court. See McBurney v. Woodward, 84 Ga. App. 807 (67 S. E. 2d, 398). When the remittitur was returned and entered in the Superior Court of Richmond County, counsel for the plaintiff made an oral motion to have the case placed on the trial docket. Counsel for the defendant then filed a written motion in opposition thereto, the contents of which are substantially as follows: In December, 1947, the plaintiff filed suit against the defendant on the same cause of action contained in the present suit. The material allegations of count two, upon which the first suit proceeded, are as follows: "1. That on November 24, 1947, plaintiff purchased from defendant a certain Buick automobile at and for the total purchase price of $3818, of which price plaintiff paid $400 in cash, traded in his Chevrolet automobile for $850, and signed notes for $2568. 2. That because of defendant's representations that said automobile was new, not having been driven more than approximately 100 miles, plaintiff bought said automobile. 3. That said representation by defendant was false--he made said representation with intention of deceiving plaintiff--he did deceive plaintiff, plaintiff relying on said representation--and plaintiff has sustained damages as a result thereof. 4. That the act of defendant in making such representation was fraud and deceit--and subjects the defendant to the payment of punitive damages and, attorney's fees." That suit then proceeded to trial and the court granted the defendant a judgment of nonsuit. Subsequently, the trial judge having refused to sign the bill of exceptions, a mandamus proceeding was brought against him in this court ( McBurney v. Anderson, 78 Ga. App. 776, 52 S. E. 2d, 519) and the petition for mandamus was denied. The plaintiff then instituted the present proceedings, the allegations of this petition being set forth in detail in McBurney v. Woodward, 84 Ga. App. 807. It will be noticed by a comparison of these cases that paragraphs 3, 4, and 5 of this suit contain the same allegations as those of paragraphs 1, 2, and 3 of the original suit, and that paragraph 8 of this suit is substantially the same as paragraph 4 of the original petition. This court, in reversing the judgment of the trial court dismissing this petition, pointed out in the statement of facts that "the action was based upon fraud and deceit in the sale of a Buick automobile by the defendant to the plaintiff, it being alleged that the plaintiff elected to rescind and had tendered said automobile back to the defendant." A special demurrer was sustained to a subparagraph of the petition, and, upon failure of the plaintiff to amend, the petition was subsequently dismissed. This court held that "the petition set out a cause of action, irrespective of the ruling on the special demurrer to subparagraph 3 of paragraph 9 thereof, [and] it was error for the trial judge to dismiss the petition on the ground that the plaintiff failed or refused to amend." The court also stated: "The plaintiff in this subparagraph was suing for a loss which he alleged he sustained on account of the fraud and deceit practiced upon him by the defendant, the same being the balance of the purchase price of the automobile. He alleged that he paid this balance and set it out as one item of his damages. We think the allegations of this paragraph of the petition are sufficient and specific enough with respect to this item' of loss which the plaintiff alleged he sustained because of the fraud and deceit of the defendant."
After setting out the foregoing pleadings as exhibits, the written motion to dismiss continues as follows: "11. That plaintiff's motion [to place the suit on the trial docket] (1) Abhors the record in this case, he having previously elected in said cases No. 1814 and 4044 to proceed on the theory of rescission of the contract, and (2) Plaintiff cannot now proceed on an exact opposite theory to recover on the basis of fraud and deceit, he having made a conclusive election, as shown by said suits, to sue on a theory of rescission of the contract, he cannot as a matter of law now adopt an inconsistent remedy, such as that of suing on the contract, for deceit and fraud . . . It would be now to assume another directly inconsistent position, seeking the aid of the court to enforce a remedy based on his new election." This motion was sustained and the petition again dismissed, the court in its judgment reciting that "Plaintiff through his counsel in the trial court in both suits took the position and argued each of them that he was proceeding on a rescission of the contract, and that, his prayers to his petition were prayers appropriate to a complaint for rescission of the contract and was not the measure of damage in a complaint for fraud and deceit. On April 3, 1952, plaintiff took the position and contended and argued he was now proceeding on his complaint for fraud and deceit . . . After plaintiff elected to bring his complaint on a rescission of the contract, he cannot subsequently assume an inconsistent position by asserting the validity of the contract and sue for the fraud and deceit in obtaining the contract."
The exception is to this judgment again dismissing the petition.
(After stating the foregoing facts.) It is recognized that in entering final judgment the court had in mind a rule of law which is stated in Bacon & Co. v. Moody, 117 Ga. 207 (43 S. E. 482) as follows: "If a contract for the sale of goods is procured by fraudulent representations of the purchaser as to his solvency, the vendor has an election to affirm or to rescind the contract. He may sue for the price of the goods and also for damages for the fraud, these remedies being consistent and proceeding on the theory of an affirmance of the contract. If, however, he elects to rescind the contract and recapture his goods, and obtains in equity a decree adjudicating that the contract is void on account of the fraud, he can not thereafter bring an action against the vendee for damages for the fraud, such an action being founded on the procurement of the contract. The rescission of the contract on the ground of fraud is inconsistent with an action for deceit for being led into making the contract."
That case, however, was an equitable action, and referred to a subsequent suit for damages for fraud after a recovery by the plaintiff of the goods sold in a receivership action. No such facts appear in this record. On the contrary, this case is closely analogous to Eastern Motor Co. v. Lavender, 69 Ga. App. 48, 51 (24 S. E. 2d, 840), which was also an action against a defendant motor company for fraud and deceit in the selling of an automobile. The opinion there states as follows: "However, the plaintiff contended that he had repudiated the contract on the ground of actual fraud consisting of material and fraudulent misrepresentations which induced him enter into the agreement. The plaintiff was not seeking to recover on the contract, for he had rescinded it, and after such rescission he had no contract on which he could sue. Hence he brought his suit on 'deceit,' a tort the essential elements of which are: '(1) That the defendant made the representations; (2) that at the time he knew they were false (or what the law regards as the equivalent of knowledge); (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on such representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.' Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 S. E. 2d, 176). The written contract of conditional sale, so far as it relates to substantive ground of the action for deceit, stands as if it had never been made, and none of its terms or conditions are binding on the plaintiff; for in the eyes of the law the written contract is nothing when it has been voided by a rescission on account of actual fraud . . . And if the injured party proved by parol the five elements necessary to sustain his suit in tort for deceit, based on actual fraud as stated above, he would be entitled to recover."
Both of the petitions on this cause of action allege that there has been a rescission of the contract by the plaintiff, that the suit is based on the defendant's fraud and deceit, and the measure of damages applicable thereto, which is the recovery of the purchase price, is sought, as well as punitive damages in both instances. An examination of the record in case No. 33684 on its first appearance in this court indicates that this court at that time had and considered every pleading in the record which is brought up in the present case, as to the second petition. It is perfectly obvious that the judgment of this court on this record--that the petition set forth a cause of action based on fraud aid deceit and seeking rescission of the contract, which judgment was not vacated, reversed, or modified--has become the law of this case. Code, 38-114; Frazier v. Southern Ry. Co., 200 Ga. 590, 596 (37 S. E. 2d, 774). It is also obvious by a comparison of the pleadings that every essential element set forth in this petition was also set forth in the original petition upon which the plaintiff was nonsuited; and that therefore the plaintiff is proceeding on the same cause of action in both instances. It would further seem that in any event a special plea on the ground that the plaintiff had elected an inconsistent remedy in a former suit in which there was no recovery by him would come too late, many terms after the petition was filed, and after demurrers had been adjudicated and the case appealed. While a motion to dismiss in the nature of a general demurrer for a defect appearing upon the face of the record may be made at any time before verdict, the pleading here, although denominated a motion to dismiss, partakes of the nature of a special plea, in that it incorporates as exhibits thereto facts which are not in the record in this case and which must be proved by outside evidence. Special pleas generally must be filed at the first term. See, in this connection, Peterson v. Lott, 200 Ga. 390, 393 (37 S. E. 2d, 358).
The Court of Appeals having adjudicated that this petition sets forth a cause of action for rescission of the contract based on the fraud and deceit of the defendant, and this pleading being in substance identical with that filed in the first suit--it was error to dismiss the case on the ground that counsel for the plaintiff first contended that by his pleadings he was seeking to rescind the contract, and later adopted the view of counsel for the defendant that his pleadings (which were not thereafter changed by amendment or otherwise) showed an affirmance of the contract. See Baker v. Davis, 127 Ga. 649 (11) (57 S. E. 62). The pleadings speak for themselves and on demurrer determine their own legal effect. The suit is for rescission of the contract on the ground of fraud, which is denominated an action for fraud and deceit, and on this basis sets forth a cause of action.
This court, upon the previous appearance of this case on its dismissal on general demurrer, had, as hereinbefore pointed out, all of the record before it which is now here, insofar as the present petition is concerned. It was there adjudicated that a cause of action was set out. In consequence, the remaining objections of the defendant to the petition will not be considered here, it being presumed that this court considered all aspects of the case which could be raised by general demurrer in holding that the petition set out a cause of action. Kelly v. Strouse, 116 Ga. 872, 891 (43 S. E. 280).
The trial court erred in dismissing the petition upon motion of the defendant.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
W. D. Lanier, contra.
Randall Evans Jr., for plaintiff in error.
Saturday May 23 04:53 EDT

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