Culverhouse v. Wofford

86 Ga. App. 58 (1952)

70 S.E.2d 805

CULVERHOUSE v. WOFFORD et al.

33883.

Court of Appeals of Georgia.

Decided May 1, 1952.

Wm. B. Greene, for plaintiff.

Jefferson L. Davis, J. R. Cullens, for defendant.

*60 CARLISLE, J.

1. While it is true that, where a petition sets forth a cause of action under any theory, it is error to dismiss the petition as against a general demurrer (Wometco Theatres v. United Artists Corp., 53 Ga. App. 509, 511 (1), 186 S. E. 572); and, while the petition contains some of the elements of an action for fraud and deceit, and some of the elements of an action for breach of warranty, it fails to state a cause of action for either.

(a) Construed as an action for fraud and deceit, the petition does not allege generally, or facts from which the inference could be drawn, that the defendant wilfully misrepresented the automobile purchased by the plaintiff to be a 1948 model, that the defendant knew the car purchased to be a 1947 model, or that, if the representation was recklessly made, it was made with the intent to deceive. Code, § 105-302; Penn Mutual Life Ins. Co. v. Taggart, 38 Ga. App. 509 (144 S. E. 400), and cases cited.

(b) Construed as an action for breach of warranty, the petition, construed most strongly against the pleader, fails to show that the plaintiff sustained any damage by the alleged breach of the warranty. "Since damages are given as compensation for the injury sustained, the petition in a suit for breach of implied warranty of personal property must, in order to withstand general demurrer, affirmatively show that the plaintiff has suffered loss by reason of such breach." Farlow v. Jeffcoat, 78 Ga. App. 653 (52 S. E. 2d, 30). While it is alleged in the petition that the plaintiff paid $1684.94 for the 1947-model car which he purchased, and that his damage was the difference between "a 1948 Dodge valued at $1484.94 and a 1947 Dodge valued at $1284.94," it is nowhere alleged that the car which he received was not worth the price which he paid for it; that is to say, it is nowhere alleged that the market price of the automobile on the day of its purchase was less than its contract price. See, in this connection, Toole v. Davenport, 63 Ga. 160; Moulton v. Baer, 78 Ga. 215 (2 S. E. 471); Thompson v. Martin, 84 Ga. 11 (19 S. E. 369); *59 Brooks v. Camak, 130 Ga. 213 (60 S. E. 456); Cook v. Robinson, 19 Ga. App. 207 (91 S. E. 427).

It follows from what has been ruled above that the trial court did not err in sustaining the general demurrer to the petition as amended.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.