Opinion
19142.
SUBMITTED OCTOBER 11, 1955.
DECIDED NOVEMBER 14, 1955.
Petition for injunction. Before Judge Vaughn. DeKalb Superior Court. July 29, 1955.
Harold Sheats, Davis Stringer, W. Dan Greer, for plaintiff in error.
Weekes Candler, contra.
Where one, as here, while negotiating for the purchase of realty, has an opportunity to examine it before agreeing to buy, but fails to do so and voluntarily relies on statements made by the seller concerning its character and value, a written contract to sell and purchase the property subsequently executed by the contracting parties will not, on petition therefor by the purchaser, be rescinded and set aside because of the falsity of such statements, unless some fraud or artifice was practiced by the seller to prevent such examination by the purchaser; and this is true although the purchaser in agreeing to buy relied upon the seller's representations as to the character and value of the property as being true, and in consequence of such reliance acted to his injury. Tindall v. Harkinson, 19 Ga. 448; Collier v. Harkness, 26 Ga. 362 (71 Am. D. 216); Allen v. Gibson, 53 Ga. 600; Stone v. Moore, 75 Ga. 565; Fuller v. Buice, 80 Ga. 395 ( 6 S.E. 17); Thompson v. Boyce, 84 Ga. 497 ( 11 S.E. 353); Martin v. Harwell, 115 Ga. 156 ( 41 S.E. 686); Morrison v. Colquitt County, 176 Ga. 104 ( 167 S.E. 321). In this case, the falsity of the statements allegedly made by the seller could have been discovered by the purchaser through the exercise of the slightest degree of diligence before she signed the contract to buy the seller's property; and if she has made a bad bargain by her failure to acquaint herself with facts which were easily ascertainable, a court of equity will not aid her in rescinding her contract to purchase by decreeing a cancellation of it. Cohron v. Woodland Hills Co., 164 Ga. 581 (2) ( 139 S.E. 56); Mims v. Cooper, 203 Ga. 421 (2c) ( 46 S.E.2d 909). Courts of equity grant no relief to one for an injury which he or she could have avoided by the exercise of ordinary diligence. The duty rests upon a party, who seeks to rescind a contract on the ground of fraud, to make such effort to discover the fraud as would in law amount to ordinary diligence. Little v. Reynolds, 101 Ga. 594 (2) ( 28 S.E. 919), and cases cited; Mass. Benefit Life Assn. v. Robinson, 104 Ga. 256, 272 ( 30 S.E. 918, 42 L.R.A. 261); Feingold v. McDonald Mortgage c. Co., 166 Ga. 838, 844 (2) ( 145 S.E. 90).
Judgment affirmed. All the Justices concur.
SUBMITTED OCTOBER 11, 1955 — DECIDED NOVEMBER 14, 1955.
On February 5, 1955, a written contract for the sale and purchase of certain realty in Fulton County was entered into between the parties to this litigation, and April 15, 1955, was fixed as the closing date. By its terms, the purchaser agreed to pay the seller $65,000 for the property. On execution of the contract, she paid the seller $748.99 in cash on the purchase price, and at the same time and as a further payment, she conveyed to him a house and lot for a consideration of $15,000, and the contract specifies when and to whom the remaining balance is to be paid. Alleging fraud as her ground therefor, the purchaser instituted this litigation against the seller on April 6, 1955, for a rescission of the contract. She prayed for a cancellation of the contract; that the deed she had made to the defendant be declared null and void; that the defendant be enjoined, temporarily and permanently, from changing the status of the property she had conveyed to him; that she have a money judgment against the defendant for $50,000; and for general relief. In substance and so far as it need be stated, her amended petition alleges: that the defendant, while negotiating the trade, represented to her that the Gulf Oil Corporation had recently offered him $80,000 for the property involved, but it was not ready to take it at that price until later, and it was necessary for him to make an immediate sale of it to meet pressing obligations; that his building was fully occupied by tenants, when in fact only about half of its units were rented; and that the City of Atlanta was planning to make extensive improvements in the area adjacent to his property, which would greatly increase its value. The representations so made to her by the defendant were knowingly false, and were made with an intention and for the purpose of misleading and deceiving her as to the character and value of the property, and she relied upon their truthfulness and acted to her injury. The defendant's intentional misrepresentations respecting the character and value of his property have injured and damaged her in the sum of $25,000 and she is entitled to recover from him a like amount as punitive damages to deter him from repeating similar wrongful acts. A general demurrer, which attacks the sufficiency of the amended petition to state a cause of action for any of the relief sought, was sustained, and the plaintiff excepted to that judgment.