Opinion
19412.
ARGUED JULY 9, 1956.
DECIDED SEPTEMBER 7, 1956. REHEARING DENIED OCTOBER 11, 1956.
Petition for injunction. Before Judge Tye. Fulton Superior Court. April 2, 1956.
James R. Venable, Margaret Hopkins, for plaintiff in error.
W. Neal Baird, Hurt, Gaines Baird, contra.
No facts are alleged to show that the note executed by the petitioners to the defendant was procured by fraud, deceit, or duress, and the petition did not state a cause of action for equitable relief.
ARGUED JULY 9, 1956 — DECIDED SEPTEMBER 7, 1956 — REHEARING DENIED OCTOBER 11, 1956.
Mrs. W. T. Rowland and C. L. Cates filed a petition against Rich's, Inc. In substance it was alleged: Mrs. W. T. Rowland has been injured and damaged by the defendant in the sum of $2,500. The petitioners executed a note to the defendant, "the execution of which was procured by fraud and deceit." Suit on the note is now pending in the Civil Court of Fulton County against C. L. Cates, and unless equity intervenes, he will suffer irreparable loss and damage. An execution against W. T. Rowland land was levied on the automobile of Mrs. W. T. Rowland. At the time of the levy, named attorneys "were the agents and attorneys of the said defendant, acting within the scope of their agency and employment." Mrs. Rowland notified the attorneys that the automobile was her personal property and not the property of her husband. The defendant, acting by and through its attorneys, refused to surrender the automobile to Mrs. Rowland. They represented to her that the only method by which she could obtain possession of her automobile was to make a payment on her husband's account and to assume the obligation for the balance due by signing a note thereon and by securing a co-signer acceptable to the attorneys. At the time of the levy, the child of Mrs. Rowland was ill, and it was necessary to make daily trips to the hospital. In her distress and anxiety about her child and getting her to the hospital daily, "and with the prospect of having to pay her husband's debt, which she could not afford to do, she was too anxious, harrassed, and worried to take other steps to retrieve her said automobile," and she relied upon the statement of the attorneys that the only way she could get her automobile was to pay her husband's obligation. She paid $25, signed a note, and procured her brother-in-law, C. L. Cates, to sign the note with her; and a release was given by the attorneys for the automobile. In procuring the signature of C. L. Cates, she repeated what had been told her by the attorneys, and Cates, believing she could retrieve her car only by this method, signed the note. An action by Rich's against Cates has been filed in the civil court, and Cates has filed a defense thereto that he received no consideration "and was induced to sign said note by virtue of the fraud and deceit" practiced on Mrs. Rowland. In attempting to secure her automobile, Mrs. Rowland was compelled to make several trips in extremely cold and inclement weather, "as a result of which she caught a severe upper respiratory infection, and suffered great physical pain and agony." In making the representations to Mrs. Rowland, the defendant, acting by its attorneys, made statements which were wilfully and knowingly false, and upon which the petitioners relied, to their injury and damage.
By amendment it was alleged that the defendant, acting through its attorneys, knew that Mrs. Rowland could not be held liable for her husband's debt, and with full knowledge of the emergency of her child's illness, the defendant obtained her signature, and through her, the signature of Cates as surety, "by duress as well as fraud" practiced upon Mrs. Rowland.
The prayers were: for process; for judgment in favor of Mrs. Rowland in the sum of $2,500; that the note signed by the petitioners be declared null and void as procured by fraud; that the pending suit in the Civil Court of Fulton County be restrained and enjoined; for rule nisi; and for other relief.
The defendant filed general and special demurrers to the petition, as amended. The ground of general demurrer, that "No cause of action is set out in said petition," was sustained, and the petition dismissed. The exception is to that judgment.
"It is well settled that a general allegation of fraud, in a bill, amounts to nothing — it is necessary that the complainant show, by specifications, wherein the fraud consists. Issuable facts must be charged. The demurrer confesses only what is well pleaded." Carter v. Anderson, 4 Ga. 516, 519; Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746 ( 28 S.E. 991); Miller v. Butler, 121 Ga. 758 (3) ( 49 S.E. 754); Anderson v. Goodwin, 125 Ga. 663, 669 ( 54 S.E. 679); Jones v. Robinson, 172 Ga. 746, 747 (3c) ( 158 S.E. 752); Robertson v. Panlos, 208 Ga. 116, 118 ( 65 S.E.2d 400).
In the present case no fraudulent acts or conduct of the defendant are alleged in procuring the execution of the note. The sole allegation of the petition relied upon by the petitioners as to fraud and deceit is that, after the levy was made, the defendant, acting by its attorneys, represented to Mrs. Rowland "that the only method by which she could obtain possession of her said automobile was to make a payment on her said husband's account, and to assume the obligation for the balance due by signing a note thereon, and by securing a co-signer acceptable to said attorneys." Construing this allegation most strongly against the pleader on general demurrer, as the rule requires, this allegation amounts to nothing more than that the attorneys for the defendant were contending that the automobile was subject to the levy made.
Mrs. Rowland, as owner of the property levied upon, had a full, complete, and adequate remedy at law by claim (Code Ch. 39-8), and her failure to avail herself of her legal remedy can not be excused by the allegation that "she did not know anything about the law, or what steps could be taken, and knowing that said attorneys, acting as agents for said defendant, were lawyers, she relied upon their statement." Under the allegations of the petition, she made no inquiry of the officer who made the levy, or of anyone else, as to her rights in the premises. Her failure to take any action to ascertain the truth as to the remedy available at law affords no basis for an equitable action for damages. The allegations of the petition set forth no grounds for equitable relief as to the action pending in the civil court against the petitioner Cates. Swofford v. Glaze, 207 Ga. 532, 535 ( 63 S.E.2d 342). The trial judge properly sustained the general demurrer.
Under the allegations of the petition, the question as to whether or not the wife could assume the debt of the husband is not involved; but, in this connection, see Code § 53-503; Sapp v. Ragan, 44 Ga. App. 688 ( 162 S.E. 655); Morris v. International Agricultural Corp., 53 Ga. App. 517, 518 ( 186 S.E. 583).
Judgment affirmed. All the Justices concur.