2020 Georgia Code
Title 51 - Torts
Chapter 6 - Fraud and Deceit
§ 51-6-2. When Misrepresentation of Material Fact Actionable as Deceit; Effect of Mere Concealment; Knowledge of Falsehood Essential to Deceit; When Knowledge Implied

1. Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.
2. In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.

(Orig. Code 1863, § 2901; Code 1868, § 2907; Code 1873, § 2958; Code 1882, § 2958; Civil Code 1895, § 3814; Civil Code 1910, § 4410; Code 1933, § 105-302.)

- For note discussing limits of tort action for deceit as a consumer remedy, see 25 Emory L.J. 445 (1976). For note, "Misrepresentations and Nondisclosures in the Insurance Application," see 13 Ga. L. Rev. 876 (1979). For comment on Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 (1952), see 15 Ga. B. J. 355 (1953). For comment on Gardner v. Celanese Corp. of America, 88 Ga. App. 642, 76 S.E.2d 817 (1953), see 16 Ga. B. J. 340 (1954). For comment on Whiten v. Orr Constr. Co., 109 Ga. App. 267, 136 S.E.2d 136 (1964), see 1 Ga. St. B. J. 234 (1964).

ANALYSIS

• General Consideration
• Application to Specific Cases

In suit sounding in tort for damages on account of actual fraud, gist of action is purpose and design to deceive. Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 144 S.E. 400 (1928); Leatherwood v. Boomershine Motors, Inc., 53 Ga. App. 592, 186 S.E. 897 (1936); Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

The gist of an action for damages in tort based on the falsity of representation is that they must have involved actual moral guilt. Dundee Land Co. v. Simmons, 204 Ga. 248, 49 S.E.2d 488 (1948).

In an action sounding in tort for damages resulting from fraudulent misrepresentation, the gist of the action is the deceit intended. Central Chevrolet, Inc. v. Campbell, 129 Ga. App. 30, 198 S.E.2d 362 (1973).

- An action of deceit is not assignable. Bates & Co. v. Forsyth, 64 Ga. 232 (1879).

- An action of deceit, is inconsistent with an action for rescission, but a mere offer to restore if unaccepted will not operate as a bar to the first named action. Commercial City Bank v. Mitchell, 25 Ga. App. 837, 105 S.E. 57 (1920).

Essential elements of action for fraud and deceit are: (1) that the defendant made the representations; (2) that at the time the defendant knew the representations were false; (3) that the defendant made the representations with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff reasonably relied upon such representations; and (5) that the plaintiff sustained the alleged loss and damage as the proximate result of the representations having been made. Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 16 S.E.2d 176 (1941); Cosby v. Asher, 74 Ga. App. 884, 41 S.E.2d 793 (1947); McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951); Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 (1952); Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); McLendon v. Galloway, 216 Ga. 261, 116 S.E.2d 208 (1960); Anderson v. R.H. Macy & Co., 101 Ga. App. 894, 115 S.E.2d 430 (1960); Wiseman Baking Co. v. Parrish Bakeries of Ga., Inc., 103 Ga. App. 61, 118 S.E.2d 190 (1961); Dixie Seed Co. v. Smith, 103 Ga. App. 386, 119 S.E.2d 299 (1961); Vaughan v. Oxenborg, 105 Ga. App. 295, 124 S.E.2d 436 (1962); Blanchard v. West, 115 Ga. App. 814, 156 S.E.2d 164 (1967); D.A.D., Inc. v. Citizens & S. Bank, 227 Ga. 111, 179 S.E.2d 71 (1971); Hannah v. Belger, 436 F.2d 96 (5th Cir. 1971); Romedy v. Willett Lincoln-Mercury, Inc., 136 Ga. App. 67, 220 S.E.2d 74 (1975); Hardy v. Gordon, 146 Ga. App. 656, 247 S.E.2d 166 (1978); Windjammer Assocs. v. Hodge, 153 Ga. App. 758, 266 S.E.2d 540 (1980), overruled on other grounds, 246 Ga. 85, 269 S.E.2d 1 (1980); Tolar Constr. Co. v. GAF Corp., 154 Ga. App. 127, 267 S.E.2d 635 (1980); Eckerd's Columbia, Inc. v. Moore, 155 Ga. App. 4, 270 S.E.2d 249 (1980); Ekstedt v. Charter Medical Corp., 192 Ga. App. 248, 384 S.E.2d 276 (1989).

A material misrepresentation, constituting actual fraud, may give rise to an independent action in tort for deceit, to recover for damage thus occasioned. In such a suit it is necessary to show, not only that a material misrepresentation was made for the purpose of inducing the plaintiff to act, that the plaintiff had a right to act, and that the plaintiff did act thereon to the plaintiff's injury, but it must be shown that such representation was willfully and knowingly false, or what the law regards as the equivalent of knowledge, a reckless or fraudulent representation about that which the party pretends to know, but about which the plaintiff knows that the plaintiff does not know, and by which false pretense the plaintiff's purpose and intent is to deceive. Leatherwood v. Boomershine Motors, Inc., 53 Ga. App. 592, 186 S.E. 897 (1936); Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

In an action for deceit, there are traditional elements which must be proved, and a material misrepresentation or concealment is one of them, as is knowledge of the falsehood, or reckless disregard of the true facts. Grainger v. Jackson, 122 Ga. App. 123, 176 S.E.2d 279 (1970).

The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. An action for fraud and deceit must be based upon a representation (or concealment) which was made with the intention and purpose of deceiving the opposite party and for the purpose of injuring the party. Conner v. Branch, 185 Ga. App. 565, 364 S.E.2d 890, cert. denied, 185 Ga. App. 909, 364 S.E.2d 890 (1988).

Civil fraud and theft by deception have different elements and showing that there are jury issues as to fraud does not necessarily show that there are jury issues as to theft by deception; a failure to show the level of intent needed for proving theft by deception would preclude a jury issue on that crime as a predicate act for RICO purposes, defeating a RICO claim. Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 448 S.E.2d 737 (1994).

- When there is fraud or breach of a legal or private duty accompanied by any damage, the law gives a right to recover damages, even only nominal damages, as compensation. Holmes v. Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991).

In order to give rise to an action for damages, the defendant's fraud must be actual, i.e., the misrepresentation must be made either knowingly or with reckless disregard for the consequences. Irvin v. Lowe's of Gainesville, Inc., 165 Ga. App. 828, 302 S.E.2d 734 (1983).

There is no requirement of privity as a predicate to liability for either fraud or conspiracy to defraud. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983).

Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party, and in the latter case renders the sale voidable at the election of the party injured. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951).

Fraud may be perpetrated by willful misrepresentations made by one person to another, with a design to mislead and which do actually mislead another; it may be perpetrated by signs and tricks, and even silence may in some instances amount to fraud. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

- Actual fraud involves moral guilt since there must be an intentional purpose to deceive. Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

Either actual or constructive fraud may consist in misrepresentation of material fact. Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

Independent affirmative action in tort based upon fraudulent misrepresentations in order to be actionable must be based upon actual fraud. Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 16 S.E.2d 176 (1941).

An essential element of any fraud claim is that the defendant knew the defendant's representation was false. First Fin. Sav. & Loan Ass'n v. Title Ins. Co., 557 F. Supp. 654 (N.D. Ga. 1982).

Whether fraud is actual depends on whether false representation was made with purpose and intent to deceive. Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

Any misrepresentation intended to deceive and which does deceive is fraud, for which a party is entitled to a remedy at law. Oliver v. O'Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934).

Misrepresentations as to question of law cannot constitute remediable fraud, as such representations are ordinarily regarded as mere expressions of opinion. This is especially true when there is no confidential relationship between the parties. Brown v. Mack Trucks, Inc., 111 Ga. App. 164, 141 S.E.2d 208 (1965).

A misrepresentation as to a matter of law amounting only to a misrepresentation as to a legal liability, which induces the making of a contract, does not constitute fraud which would authorize an action for deceit, when the matter is equally open to the observation of both parties, and there is no relation of trust or confidence between the parties. Salter v. Brown, 56 Ga. App. 792, 193 S.E. 903 (1937).

Innocent misrepresentations cannot amount to anything more than constructive fraud, and, as such, are not creative of any independent right of action for damages in tort in favor of the injured party; but they may support an action in equity to rescind a contract so induced. Gaultney v. Windham, 99 Ga. App. 800, 109 S.E.2d 914 (1959); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

"Innocent" or "constructive" fraud exists only as an equitable doctrine and will not support an action in tort for damages. Irvin v. Lowe's of Gainesville, Inc., 165 Ga. App. 828, 302 S.E.2d 734 (1983).

Concealment of a defect is actionable when there is a duty of disclosure. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983).

Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or when the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover. Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980).

Falsehood or lie, without damage, will not entitle the plaintiff to recover; but if there be damage with a lie, there is deceit, and injury to the party injured by the deceit is entitled to redress. Foster v. Sikes, 202 Ga. 122, 42 S.E.2d 441 (1947).

Knowledge of falsity is essential element in cause of action for deceit based upon fraud. Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

A "misrepresentation" presupposes knowledge of the falsity of the representation and does not include representations as to future acts or events. Gross v. Ideal Pool Corp., 181 Ga. App. 483, 352 S.E.2d 806 (1987).

Although affirmation of what is not known to be true, or believed to be true, is equally as unjustifiable as the affirmation of what is positively known to be false. Boroughs v. Belcher, 211 Ga. 273, 85 S.E.2d 422 (1955).

- While fraud cannot generally be based on instances of misrepresentations as to future events, it may consist of such instances if, when misrepresentation is made, defendant knows that the future event will not take place. Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982).

Promise made without present intent to perform is misrepresentation of material fact and is sufficient to support a cause of action for fraud. Middlebrooks v. Lonas, 246 Ga. 720, 272 S.E.2d 687 (1980).

A promisee states a cause of action for inceptive fraud if the promisee alleges that the promisor made a promise, even as to a future event, and at the time of making it the promisee had no intention of performing. Sams v. Duncan & Copeland, Inc., 153 Ga. App. 765, 266 S.E.2d 546 (1980), overruled on other grounds, Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 315 S.E.2d 51 (1984), overruled on other grounds as stated in, Parker v. Crider Poultry Inc., 275 Ga. 361, 565 S.E.2d 797 (2002).

- When the alleged fraud was the concealment of a material fact which induced a contract, the tort of fraud is complete when the contract is executed and cannot be obviated by a post-contract representation of the true facts. Preiser v. Jim Letts Oldsmobile, Inc., 160 Ga. App. 658, 288 S.E.2d 219 (1981).

- When the purchaser did not receive the car described and identified in the bill of sale, but instead received one-half of the described vehicle welded to one-half of another unidentified and unidentifiable vehicle, the disclaimer of warranties in the bill of sale was not a sufficient defense against an action for deceit. Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294 S.E.2d 533 (1982).

Scienter is an essential element in an action for damages based upon fraud. Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

It is indispensable to recovery that scienter be both alleged and proved. Central Chevrolet, Inc. v. Campbell, 129 Ga. App. 30, 198 S.E.2d 362 (1973).

Georgia's fraud law requires not only knowledge but also intent to deceive or cause reliance. Kirk v. First Nat'l Bank, 439 F. Supp. 1141 (M.D. Ga. 1977).

Element of intention to deceive is as necessary in action based on concealment as one based on willful misrepresentation. Camp Realty Co. v. Jennings, 77 Ga. App. 149, 47 S.E.2d 917 (1948).

False representations to be basis of prosecution for cheating and swindling must relate either to the past or the present; no promise or statement as to what may occur in the future, however false, will serve as a basis for such a prosecution. Scarborough v. State, 51 Ga. App. 667, 181 S.E. 230 (1935).

In actions for fraud, misrepresentations relied on must relate to past or existing facts. Brown v. Mack Trucks, Inc., 111 Ga. App. 164, 141 S.E.2d 208 (1965); Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

It is generally rule that actionable fraud cannot be based on statements and promises as to future events. Sams v. Duncan & Copeland, Inc., 153 Ga. App. 765, 266 S.E.2d 546 (1980), overruled on other grounds, Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 315 S.E.2d 51 (1984).

In suit for fraud, one essential element is proof that the plaintiff relied on the misrepresentation and was injured as a result of that reliance. Hannah v. Belger, 436 F.2d 96 (5th Cir. 1971).

Misrepresentations are not actionable unless hearer was justified in relying on the misrepresentations in the exercise of common prudence and diligence. Daugert v. Holland Furnace Co., 107 Ga. App. 566, 130 S.E.2d 763 (1963).

Misrepresentations are not actionable unless the complaining party was justified in relying thereon in the exercise of common prudence and diligence. When the representation consists of general commendations or mere expressions of opinion, hope, expectation, and the like, the party to whom it is made is not justified in relying upon it and assuming it to be true; one is bound to make inquiry and examination for oneself so as to ascertain the truth. Brown v. Mack Trucks, Inc., 111 Ga. App. 164, 141 S.E.2d 208 (1965).

- Although the plaintiff fails to allege lack of knowledge that the representations were false, this element may be implied from the facts stated therein. Cheney v. Powell, 88 Ga. 629, 15 S.E. 750 (1892).

Plaintiff not required to exhaust all means at the plaintiff's disposal to ascertain the truth of representations before acting thereon. Gibson v. Home Folks Mobile Home Plaza, Inc., 533 F. Supp. 1211 (S.D. Ga. 1982).

- Fraud cannot form the basis of an action or a defense thereto, in the absence of any trust or confidential relationship, if it appears that the person relying on the fraud as a basis for the action or in defense thereto had equal and ample opportunity to prevent the happening of the occurrence, and made it possible through a failure to exercise proper diligence. Anderson v. R.H. Macy & Co., 101 Ga. App. 894, 115 S.E.2d 430 (1960).

A petition for fraud and deceit must show that one who relied upon the representations of another used the means available to the petitioner, in the exercise of diligence, to discover the truth. One failing to inform oneself, but having equal opportunity of learning the truth, must suffer the consequences of one's neglect. Blanchard v. West, 115 Ga. App. 814, 156 S.E.2d 164 (1967).

One who fails to investigate or use ordinary care to verify a statement made by another may not recover under this section, even if the statement is later found to be an intentional misrepresentation and fraud is proven. Hannah v. Belger, 436 F.2d 96 (5th Cir. 1971).

A false statement is not fraud when there is no reason why the statement should be believed or acted upon, and there is no legal relief afforded when one blindly relied on the representations of the seller as to matters of which one could have informed oneself. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

The complaining party in a suit for deceit cannot prevail if by the exercise of due diligence one could have obtained knowledge of the truth. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91 (5th Cir. 1976).

In the absence of special circumstances one must exercise ordinary diligence, failure to do which will bar an action based on fraud. Hubert v. Beale Roofing, Inc., 158 Ga. App. 145, 279 S.E.2d 336 (1981); Bragg v. Sirockman, 169 Ga. App. 643, 314 S.E.2d 478 (1984).

One cannot claim to be defrauded about a matter equally open to the observation of all parties when no special relation of trust or confidence exists. Hubert v. Beale Roofing, Inc., 158 Ga. App. 145, 279 S.E.2d 336 (1981); Bragg v. Sirockman, 169 Ga. App. 643, 314 S.E.2d 478 (1984).

With equal opportunities for knowing the truth, a party grossly failing to inform oneself must take the consequence of one's neglect. Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981).

One may not voluntarily accept the statements and representations of another and act thereon, instead of looking for oneself, and then obtain relief in equity from the obligation which one assumes. Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981).

Georgia law does not require a defrauded party to exhaust all means at one's disposal to ascertain the truth of representations before acting thereon. Gibson v. Home Folks Mobile Home Plaza, Inc., 533 F. Supp. 1211 (S.D. Ga. 1982).

In order to show fraud and misrepresentation as a defense to an action based on contract, it must be shown that the defendant exercised due care to discover the fraud and that the defendant relied upon the false representations to the defendant's injury. Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981).

- Misrepresentations as to an existing and material fact, amounting to fraud, when made either by a principal or through an agent, whereby another is induced to enter upon an obligation in writing, may, as between the parties, be alleged and proved. Pressley v. Jones, 64 Ga. App. 419, 13 S.E.2d 394 (1941).

- An action for fraud and deceit must allege that the representation (or the concealment) was made with the intention and purpose of deceiving the opposite party, and for the purpose of injuring that party. Camp Realty Co. v. Jennings, 77 Ga. App. 149, 47 S.E.2d 917 (1948).

To make out a cause of action for fraud and deceit it is necessary to allege that the person defrauding by false statements or by representations inducing the other person to act to one's injury knew that the representations were false and made the representation with the intent to deceive and defraud on existing facts. C.M. Miller Co. v. Ramey, 82 Ga. App. 807, 62 S.E.2d 768 (1950).

- Fraud is "in itself subtle," and circumstances apparently trivial or almost inconclusive, if separately considered, may by their number and joint operation be sufficient to constitute conclusive proof. Grainger v. Jackson, 122 Ga. App. 123, 176 S.E.2d 279 (1970).

To support an action of deceit on the grounds of failure to disclose a material fact, the evidence must show that there was a concealment of a material fact, that such concealment was done to induce another to act, and that it was done in such a manner as to deceive and mislead. McDaniel v. Green, 156 Ga. App. 549, 275 S.E.2d 124 (1980).

Since the first element of fraud was that the defendant made a false representation, once the defendant pointed to the absence of evidence to support this element of the plaintiff's fraud claim, the plaintiff had to come forward with specific evidence giving rise to a triable issue, which the plaintiff did not do. Johnson v. Rodier, 242 Ga. App. 496, 529 S.E.2d 442 (2000).

Reliance by the plaintiff on statements of the defendant may be proved by parol evidence. Chandler-Blackstad Mercantile Co. v. Price & Co., 10 Ga. App. 383, 73 S.E. 413 (1912); Hixon v. Hinkle, 156 Ga. 341, 118 S.E. 874 (1923); Barron G. Collier, Inc. v. Bailey, 31 Ga. App. 197, 120 S.E. 427 (1923).

Plaintiff is incompetent to answer question of what conduct of the defendant, in the plaintiff's opinion, constituted conspiracy to defraud. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983).

- When the plaintiff is proceeding ex delicto for deceit, it is not cause for a new trial to the defendant that the judge in the judge's charge to the jury, which included this section, gave that part of the section dealing with "mere concealment." Deibert v. McWhorter, 34 Ga. App. 803, 132 S.E. 110 (1926).

Charge given on concealment found adequate. See Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983).

- In action to hold a corporate vice-president personally liable for a shipment of labels on the theory that the vice-president fraudulently induced the shipment by promising personal payment without present intention to perform, it was error to charge that fraud could be actual or constructive, for the corporate officer either committed actual fraud or did not; and the charge required a new trial as it tended to mislead the jury to a finding of liability merely for failure to pay. Goodlett v. Ray Label Corp., 171 Ga. App. 377, 319 S.E.2d 533 (1984).

- Trial court erred in charging the jury that an authorized representative who signs one's name to an instrument is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity when the only pertinent signature was the corporate officer's signature on the shipment invoice as the person who "received" the shipment; it was not harmless error because the evidence in the case did not demand a finding that when the corporate officer promised the shipper it would get its money, the officer did so willfully or recklessly with intent to deceive. Goodlett v. Ray Label Corp., 171 Ga. App. 377, 319 S.E.2d 533 (1984).

Imposition of punitive damages in action for fraudulent misrepresentation is jury question. Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980).

It is for jury to determine whether statements constitute misrepresentations and if so, whether such misrepresentations are such as to be material to the transaction, as well as whether such misrepresentations induced the party alleged to be defrauded to pursue some course which he would not otherwise have pursued except for the fraud. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

It is province of jury to pass upon all circumstances of alleged fraud, and to determine whether or not the party defrauded exercised diligence in discovering the falsity of the misrepresentations. Johnson v. Renfroe & McCrary, 73 Ga. 138 (1884); Summerour v. Pappa, 119 Ga. 1, 45 S.E. 713 (1903); Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934).

Questions of fraud, and the truth and materiality of representations made by a defendant, and whether the plaintiff could have protected oneself by the exercise of proper diligence, are matters which usually should be submitted to a jury, and the court will not solve them on demurrer (now motion to dismiss), except in plain and undisputable cases. Blanchard v. West, 115 Ga. App. 814, 156 S.E.2d 164 (1967).

Because there was evidence that the defendant made false statements denying that any bonuses had been paid by the city, the defendant knew that the statements were false, and the plaintiff relied on the alleged false statements by not receiving 5% of the revenues the defendant received from the city, the trial court erred in granting summary judgment to the defendant on the plaintiff's fraud claim alleging that the defendant had misrepresented and concealed revenues it had received from the city in the form of performance bonuses. Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 752 S.E.2d 18 (2013).

Materiality of misrepresentations is usually question for jury. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

The materiality of a misrepresentation is a jury question. Whether a party exercised due diligence to ascertain the truth is also for jury resolution. Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga. App. 164, 397 S.E.2d 720 (1990).

Question of diligence of party defrauded relating to whether one exercised due care to ascertain truth is usually matter for jury. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

The question whether the plaintiff could, by the exercise of ordinary diligence, have discovered the falsity of the representations, is for the determination of the jury. Daugert v. Holland Furnace Co., 107 Ga. App. 566, 130 S.E.2d 763 (1963); Scoggins v. Puckett, 219 Ga. 282, 133 S.E.2d 17 (1963).

Whether or not a party used reasonable diligence in investigating or attempting to verify a representation by another which was relied upon by the party is ordinarily a question for the jury. However, when there is absolutely no evidence to show that any attempt to ascertain the truth of the representation was made, there is no issue for the jury's consideration and a directed verdict should be granted. Hannah v. Belger, 436 F.2d 96 (5th Cir. 1971).

Scienter in actions based on fraud is issue of fact for jury. Hertz Corp. v. Cox, 430 F.2d 1365 (5th Cir. 1970), cert. denied, 414 U.S. 825, 94 S. Ct. 129, 38 L. Ed. 2d 59 (1973).

Cited in James v. Elliott, 44 Ga. 237 (1871); Cooley v. King & Co., 113 Ga. 1163, 39 S.E. 486 (1901); Bankers' Health & Life Ins. Co. v. Givens, 43 Ga. App. 43, 157 S.E. 906 (1931); Keiley v. Citizens' Sav. Bank & Trust Co., 173 Ga. 11, 159 S.E. 527 (1931); Equitable Bldg. & Loan Ass'n v. Brady, 175 Ga. 43, 164 S.E. 674 (1932); Jenkins v. Cobb, 47 Ga. App. 456, 170 S.E. 698 (1933); Smith v. Pennington, 192 Ga. 478, 15 S.E.2d 727 (1941); Beavers v. Williams, 199 Ga. 113, 33 S.E.2d 343 (1945); Dundee Land Co. v. Simmons, 204 Ga. 248, 49 S.E.2d 488 (1948); Edwards v. Stiles, 81 Ga. App. 138, 58 S.E.2d 260 (1950); Culverhouse v. Wofford, 86 Ga. App. 58, 70 S.E.2d 805 (1952); Rountree v. Todd, 210 Ga. 226, 78 S.E.2d 499 (1953); Patterson v. Correll, 92 Ga. App. 214, 88 S.E.2d 327 (1955); Jackson v. Smith, 92 Ga. App. 677, 89 S.E.2d 526 (1955); Allstadt v. Johnson, 97 Ga. App. 584, 103 S.E.2d 683 (1958); HFC v. Harmon, 102 Ga. App. 320, 116 S.E.2d 319 (1960); Bagley v. Firestone Tire & Rubber Co., 104 Ga. App. 736, 123 S.E.2d 179 (1961); Vaughan v. Oxenborg, 105 Ga. App. 295, 124 S.E.2d 436 (1962); Jackson v. Hatch, 115 Ga. App. 623, 155 S.E.2d 676 (1967); City Dodge, Inc. v. Atkins, 118 Ga. App. 676, 164 S.E.2d 864 (1968); Cato v. English, 228 Ga. 120, 184 S.E.2d 161 (1971); Petty v. Lee, 132 Ga. App. 780, 209 S.E.2d 239 (1974); Mooney v. Tallant, 397 F. Supp. 680 (N.D. Ga. 1975); Rosenberg v. Mossman, 140 Ga. App. 694, 231 S.E.2d 417 (1976); Flint-Ocmulgee Dev. Corp. v. Liles, 141 Ga. App. 163, 233 S.E.2d 25 (1977); Lancaster v. Eberhardt, 141 Ga. App. 534, 233 S.E.2d 880 (1977); Garrison v. Department of Transp., 240 Ga. 840, 242 S.E.2d 615 (1978); Mahan v. Jackson, 147 Ga. App. 495, 249 S.E.2d 311 (1978); Osterneck v. E.T. Barwick Indus., Inc., 79 F.R.D. 47 (N.D. Ga. 1978); Roberts v. Patton, 149 Ga. App. 333, 254 S.E.2d 484 (1979); Garden of Eden, Inc. v. Eastern Sav. Bank, 244 Ga. 63, 257 S.E.2d 897 (1979); Ivey Contracting Co. v. Elliott, 151 Ga. App. 361, 259 S.E.2d 658 (1979); Trust Co. v. Associated Grocers Coop., 152 Ga. App. 701, 263 S.E.2d 676 (1979); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir. 1979); Windjammer Assocs. v. Hodge, 246 Ga. 85, 269 S.E.2d 1 (1980); Adbe Distrib. Co. v. Hundred E. Credit Corp., 156 Ga. App. 787, 275 S.E.2d 347 (1980); Coleman v. Ellenberg (In re Cohen), 6 Bankr. 708 (Bankr. N.D. Ga. 1980); Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981); Everson v. Franklin Disct. Co., 248 Ga. 811, 285 S.E.2d 530 (1982); Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga. 1981); Lively v. Garnick, 160 Ga. App. 591, 287 S.E.2d 553 (1981); McGaha v. Kwon, 161 Ga. App. 216, 288 S.E.2d 289 (1982); Levine v. Peachtree-Twin Towers Co., 161 Ga. App. 103, 289 S.E.2d 306 (1982); Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264, 293 S.E.2d 526 (1982); Robert & Co. Assocs. v. Rhodes-Haverty Partnership, 250 Ga. 680, 300 S.E.2d 503 (1983); Diamond v. Lamotte, 709 F.2d 1419 (11th Cir. 1983); Mr. Transmission, Inc. v. Thompson, 173 Ga. App. 773, 328 S.E.2d 397 (1985); Walker v. Williams, 177 Ga. App. 830, 341 S.E.2d 487 (1986); Graham v. Cook, 179 Ga. App. 603, 347 S.E.2d 623 (1986); Graham v. Hogan, 185 Ga. App. 842, 366 S.E.2d 219 (1988); Seale v. Miller, 698 F. Supp. 883 (N.D. Ga. 1988); O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988); Tyler v. Pepsico, Inc., 198 Ga. App. 223, 400 S.E.2d 673 (1990); Tower Fin. Serv., Inc. v. Jarrett, 199 Ga. App. 248, 404 S.E.2d 622 (1991); Hahne v. Wylly, 199 Ga. App. 811, 406 S.E.2d 94 (1991); O'Berry v. Cooper, 202 Ga. App. 97, 413 S.E.2d 736 (1991); American Demolition, Inc. v. Hapeville Hotel Ltd. Partnership, 202 Ga. App. 107, 413 S.E.2d 749 (1991); Baranco, Inc. v. Bradshaw, 217 Ga. App. 169, 456 S.E.2d 592 (1995); Cobb County v. Jones Group, 218 Ga. App. 149, 460 S.E.2d 516 (1995); Reynolds v. Flint River Technical Inst., 223 Ga. App. 240, 477 S.E.2d 393 (1996); Plane v. Uniforce MIS Servs. of Ga., Inc., 223 Ga. App. 731, 479 S.E.2d 18 (1996); Longino v. Bank of Ellijay, 228 Ga. App. 37, 491 S.E.2d 81 (1997); Tart v. IMV Energy Sys. of Am., 374 F. Supp. 2d 1172 (N.D. Ga. 2005); Golden Atlanta Site Dev., Inc. v. Tilson, 299 Ga. App. 646, 683 S.E.2d 166 (2009).

Application to Specific Cases

Effect of plaintiff's contributory negligence.

- When a prospective purchaser of a quantity of goods represented to the owner of the goods who was offering them for sale that one could not afford to pay the market value because there was a processing tax imposed by the United States government on the goods and the seller, relying on the purchaser's representation as to the existence of a processing tax, sold the goods to the purchaser at the value of the tax less, per ton, but the pretended processing tax imposed was in fact void, the purchaser having instituted legal proceedings in court for the purpose of enjoining its collection, and having obtained an injunction enjoining same, the purchaser's misrepresentation of the purchaser's liability for the payment of the processing tax was as to a matter equally open to the observation of the seller and, therefore, constituted no fraud affording a ground for a cause of action for deceit. Salter v. Brown, 56 Ga. App. 792, 193 S.E. 903 (1937).

In the absence of a confidential relationship a party may not rely and act on the misrepresentations of an opposite party as to the contents of a written instrument when the party signing can read and when no artifice or fraud is practiced which prevents the party signing from reading the instrument. Robi v. Goldstein, 100 Ga. App. 606, 112 S.E.2d 165 (1959).

The law demands of every one that one make use of one's own facilities to avoid being defrauded. No other rule could safely be adopted and enforced by the courts with reference to written instruments. It is essential to all business relationships that the validity and solemnity of written contracts, freely and voluntarily executed, be upheld. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

Diligence to detect fraud is as much incumbent upon a party who labors under no disability, as to do any other act in which one's interest is involved. One must look about one, and see what villainies environ one. If one has been caught in a net, one must feel for meshes. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

One having the capacity and opportunity to read a written contract, and who signs the contract, not under any emergency, and whose signature is not obtained by trick or artifice of the other party, cannot afterwards set up fraud in the procurement of one's signature to the instrument. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

Such things as soil, timber, or springs on land are open to inspection, and the purchaser is willfully negligent if the purchaser fails to look and see for oneself, and neither law nor equity will relieve one from one's own want of diligence. Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981).

- When the basis upon which the contract was entered upon lies in the existence or nonexistence of certain material facts, the verity of which must be ascertained from the statement of one acquainted with such facts, each of the contracting parties has a right to rely upon the truth of the other's statements with reference thereto, when such statements relate to matters apparently within the knowledge of the party asserting them; and to do this without checking the statements with the declarations of other and different persons, in order, by such an investigation, to test their probable truth. Deibert v. McWhorter, 34 Ga. App. 803, 132 S.E. 110 (1926).

While it is true that in some cases a plea of fraud may be disallowed when a buyer has sufficient opportunity to ascertain the facts and is not prevented from doing so by any artifice or fraud of the seller, when it is not apparent how a buyer of stock could have ascertained the insolvency of a bank, otherwise than by asking its officers, one has the right to accept the statement of one's seller as an officer on that subject. Floyd v. Boss, 174 Ga. 544, 163 S.E. 606 (1932).

The purchaser had a right to rely on seller's eight-month income statement and yearly projection therefrom; due diligence before relying on the representation did not require inspection of books to ascertain fraud. Gibson v. Home Folks Mobile Home Plaza, Inc., 533 F. Supp. 1211 (S.D. Ga. 1982).

If contract is invalid overall for uncertainty, it is immaterial that realty involved was incorrectly described by willful misrepresentation. Berry v. Discount Lumber & Supply Co., 235 Ga. 320, 219 S.E.2d 434 (1975).

If there has been false representation as to past or existing fact, offense of cheating and swindling is complete, notwithstanding there may have been, as a part of the inducement to the person defrauded to part with the person's money, a promise by the swindler to be performed in the future. Scarborough v. State, 51 Ga. App. 667, 181 S.E. 230 (1935).

Concealment of insolvency of maker of promissory note, if known by a holder who is negotiating it, is deceit. Gordon v. Irvine, 105 Ga. 144, 31 S.E. 151 (1898).

Declaration to attaching officer that property has been destroyed is actionable. Davis v. Scott, 141 Ga. 33, 80 S.E. 284 (1913).

It is not necessary that deceit in question should have been sole inducement which led the plaintiff to make an investment, it is sufficient if it influenced the plaintiff's conduct materially. Scoggins v. Puckett, 219 Ga. 282, 133 S.E.2d 17 (1963).

- In a product liability action for injuries allegedly suffered from breast implants, the plaintiff's claims based on fraud and misrepresentation failed because the plaintiff was unable to show any reliance on the alleged misrepresentations of the manufacturer. Allison v. McGhan Medical Corp., 184 F.3d 1300 (11th Cir. 1999).

Professional basketball player was not liable to inexperienced businessmen who invested and lost money by hosting sports event-related parties based on an oral agreement with two men claiming to act as the player's agents. The businessmen's fraud in the inducement claim under O.C.G.A. § 51-6-2 failed because the player did not personally make any representations to the businessmen and did not authorize or ratify any representations made by the purported agents. J'Carpc, LLC v. Wilkins, 545 F. Supp. 2d 1330 (N.D. Ga. 2008).

- Evidence that by the use of scheme, artifice, or method, the defendant obtained a written contract for sale of stainless steel cookware, with full knowledge that the plaintiff was laboring under the misapprehension that food cooked in aluminum cookware becomes impregnated with a cancer-producing substance involved a representation of a present fact to establish an immediate fear in the plaintiff for the plaintiff's own health and that of the plaintiff's family, and the jury was authorized to conclude that the contract was the result of undue influence amounting to fraud on the part of the defendant. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

- A car auction contended that a bank's practice of paying a car company's checks when the account had insufficient funds constituted fraud because such payment misled the car auction as to the company's credit worthiness. However, the evidence showed that the auction relied upon past credit history in extending credit and that it had no knowledge that the bank paid checks when the account had insufficient funds until some checks were dishonored. Therefore, the bank did not act fraudulently, because there was no misrepresentations, no reliance, and no intent to deceive. Georgia Cas. & Sur. Co. v. Tennille Banking Co. (In re Smith), 51 Bankr. 904 (Bankr. M.D. Ga. 1985).

- Since the plaintiff had been employed by the defendant since 1973, in 1979 the plaintiff was injured in a job-related accident and received workers' compensation benefits therefor, approximately one year later the defendants allegedly promised the plaintiff that the plaintiff could return to work for the defendants upon the plaintiff's obtaining a full release from the plaintiff's physician, and the plaintiff persuaded the attending physician to execute a full release so that the plaintiff could return to work, even though the plaintiff was not completely recovered from the plaintiff's injuries, under Georgia law the promise allegedly made by the defendant is unenforceable and cannot form the basis for fraud because the underlying employment contract, being terminable at will, is unenforceable. Phillips v. Liberty T.V. Cable, Inc., 166 Ga. App. 411, 304 S.E.2d 516 (1983).

- Trial court erred by granting summary judgment to an auto dealership on a buyer's claim for fraud against the dealership because the record created a question of fact as to whether the dealership issued a substantially inaccurate odometer statement even when more than one employee either knew that the written statement was false or recklessly disregarded the possibility that it was so. Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798, 775 S.E.2d 172 (2015).

- Evidence was sufficient to support jury finding that the defendant car dealer misstated the subject matter of sale recklessly, either knowing that the car had been "clipped," meaning that one-half of the described vehicle had been welded to one-half of an unidentified vehicle, or avoiding knowledge because of failure or refusal of employees involved with the automobile to examine it when a cursory examination upon either purchase or resale would have divulged the fact that it was illegally reassembled and could not be sold under license umbrella it had assumed. Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294 S.E.2d 533 (1982).

- A petition which alleges that the defendant, an insurance agent, represented that the defendant had issued a binder insuring the property when the defendant knew that the defendant had not, or, that the defendant promised that the defendant would issue a binder when in fact the defendant had no intention of doing so, that the defendant made the misrepresentations with the purpose of making the plaintiff believe the plaintiff was insured as of a certain date when, in fact, the plaintiff was not, that the plaintiff relied upon the misrepresentations and sustained a loss and damage as a result thereof, states a cause of action for deceit. Clark v. Kelly, 217 Ga. 449, 122 S.E.2d 731 (1961).

- See Hubbard v. Stewart, 651 F. Supp. 294 (M.D. Ga. 1987).

- When the debtor failed to disclose to the creditor that business assets were no longer available to secure a loan upon its renewal, the debt was not dischargeable in bankruptcy because the renewal was obtained by false pretenses. Suntrust Bank v. Brandon (In re Brandon), 297 Bankr. 308 (Bankr. S.D. Ga. 2002).

Debtor's actions constituted fraud when the debtor made a representation to another shareholder that no further commissions would be paid from a talent agency to which the shareholder would be entitled; the representation was false; the debtor knew the representation was false; the debtor repeated the representation in response to multiple questions by the shareholder; and the shareholder's reliance was justified and reasonable. The debt was nondischargeable because the justifiable reliance standard required under Georgia law was the same as required under the Bankruptcy Code provision. Hot Shot Kids Inc. v. Pervis (In re Pervis), 512 Bankr. 348 (Bankr. N.D. Ga. 2014).

- Summary judgment was properly granted on a fraud count since the homeowners merely showed sloppy business practices on the part of a building supplier without evidence from which either knowledge of falsity at the time of the alleged misrepresentation or intent to deceive could reasonably be inferred. Hicks v. McLain's Bldg., Materials, Inc., 209 Ga. App. 191, 433 S.E.2d 114 (1993).

- Petition by subcontractor for damages due to increased costs of work performed by virtue of misrepresentations by contractor as to nature of work required was an action for fraud and deceit. Rich's, Inc. v. Kirwan Bros., 97 Ga. App. 58, 102 S.E.2d 648 (1958).

Misrepresentation of price that vendor paid for land is deceitful. Administrator of Green v. Bryant, 2 Ga. 66 (1847).

- In an action by a purchaser to rescind a contract for the purchase of real estate on the ground of the fraudulent concealment of a material fact, when the allegations of fact were insufficient to show actual fraud, in that there was no duty to communicate the material fact in question, which the purchaser could have discovered by exercising ordinary care, and there were no misrepresentations, no cause of action was stated. Kirven v. Blackett, 208 Ga. 178, 65 S.E.2d 791 (1951).

Claims of house purchasers against a lender that held a mortgage on the property at the time of the sale could not survive summary judgment since the purchasers could not show that they had any contact with the lender prior to the sale. Ali v. Fleet Fin., Inc., 232 Ga. App. 13, 500 S.E.2d 914 (1998).

There was no evidence from which the jury could reasonably infer that the defendant real estate agent knew about the defects in the home purchased by the plaintiff when such knowledge rested upon the assumption that because the defendant said that the sellers were "friends" and because the defendant was their listing agent, that the defendant must have known of the defects. ReMax North Atlanta v. Clark, 244 Ga. App. 890, 537 S.E.2d 138 (2000).

Trial court correctly granted summary judgment in favor of an appraisal company and a real estate appraiser on a seller's claim that they engaged in wilful misconduct because the seller alleged that the company and appraiser made wilful misrepresentations by merely choosing not to change alleged negligent misrepresentations as to fair market value after being informed of the negligence, but that did not support a claim that the company and appraiser made wilful misrepresentations. Wingate Land, LLC v. ValueFirst, Inc., 314 Ga. App. 24, 722 S.E.2d 868 (2012).

- Since it was undisputed that no agent of a municipality actually knew that a community improvement district had not been created until after the relevant misrepresentations had been made, and there was no evidence elsewhere of any intent on the behalf of the municipality to deceive the plaintiffs, no cause of action accrued under O.C.G.A. § 51-6-2. Circle H Dev., Inc. v. City of Woodstock, 206 Ga. App. 473, 425 S.E.2d 891 (1992).

- Promise by real estate broker that the broker "will see" that the developer and landowner of lots was paid "on the first draw" of the construction loan was not uttered with the intent to deceive since the statement was made two years before and during that time the developer had been paid for all lots except the two now the subject of the action. Community Fed. Sav. & Loan Ass'n v. Foster Developers, Inc., 179 Ga. App. 861, 348 S.E.2d 326 (1986).

- In a purchaser's suit against a co-developer asserting claims for conversion, fraud and deceit, conspiracy to commit fraud and deceit, piercing the corporate veil, punitive damages, and attorney fees and costs of litigation, the trial court properly denied the co-developer's motion for summary judgment as genuine issues of fact existed as to whether the co-developer misrepresented that the developer owned the property; whether the investment contract was a security or not; and whether the co-developer's actions supported an award of punitive damages sought by the purchaser. Of significance, it was not relevant that the co-developer was not a party to the sale/purchase agreement/investment contract at issue as the claims against the co-developer involved the alleged inducement the co-developer engaged in to have the purchaser contract with the developer. Golden Atlanta Site Dev., Inc. v. R. Nahai & Sons, Inc., 299 Ga. App. 654, 683 S.E.2d 627 (2009).

Proof of concealment of encumbrance on property at a state, would be sufficient to authorize jury to infer actual moral fraud on the part of the seller. Burpee v. Holmes, 132 Ga. 464, 64 S.E. 486 (1909).

- In a case of, inter alia, fraudulent concealment of negligent construction and negligent construction of the utility lines, the defendants' motion for summary judgment on the plaintiffs' claims of fraud and false representation of a material fact because the former owner's reckless, if not knowingly false, representations regarding the placement of the utilities were sufficient to sustain a claim of fraud; the owner's act of signing the final plat without checking that the subdivision complied with the county regulations, including the proper placement of utility lines, was a reckless representation without knowledge; and the act of filing a plat with the county could be interpreted as an act intended to induce parties to purchase the lots. Lafontaine v. Alexander, 343 Ga. App. 672, 808 S.E.2d 50 (2017).

- Property owners' intentional and negligent misrepresentation claims against a bank failed because the property owners failed to show that the bank supplied false information to the owners as required by O.C.G.A. § 51-6-2. Mortensen v. Bank of Am., N.A., F. Supp. 2d (M.D. Ga. Nov. 17, 2011).

- In an action to rescind a sale of stock for fraud, the official connection of the defendant with the bank, affording the defendant the opportunity for knowing the condition of the bank, was a fact to be considered by the jury in determining whether the defendant knowingly made false statements as to the value of the stock. Floyd v. Boss, 174 Ga. 544, 163 S.E. 606 (1932).

A misrepresentation by a director to a person purchasing stock concerning the financial condition of the corporation is actionable. Camp v. Carithers, 6 Ga. App. 608, 65 S.E. 583 (1909); Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934).

- In suit against the defendants, for a tort consisting of fraudulent representations made by them in their financial statements, whereby the borrower obtained money from the plaintiff, the plaintiff could waive the right to sue on the note and the contract of guaranty and bring an action for damages on account of alleged fraud and deceit by the defendant, whereby the lender advanced the money to its subsequent injury. Allen v. Hartsfield Co., 52 Ga. App. 549, 183 S.E. 821 (1936).

- Petition stated a cause of action for fraud and deceit under the provisions of this section since the petition alleged that use of the term "furlough status" by the defendant, in falsely designating the plaintiff's employment status with it, prevented the plaintiff's employment elsewhere, when in truth the plaintiff's employment with the defendant was at an end. Gardner v. Celanese Corp., 88 Ga. App. 642, 76 S.E.2d 817 (1953).

- As against attack by general demurrer (now motion to dismiss), allegations of fraud and deceit which show that the defendant deliberately concealed facts within the defendant's knowledge affecting value, as an inducement to sell, which facts the plaintiff sought to discover, are sufficient to support a cause of action. Blanchard v. West, 115 Ga. App. 814, 156 S.E.2d 164 (1967).

Contrary to the caveator's insertion, no evidence was presented to show that the testator's grandson's statements about the caveator were willful misrepresentations that caused the testator to change the testator's will to disinherit the caveator. Harper v. Harper, 274 Ga. 542, 554 S.E.2d 454 (2001).

- Since there may have been some evidence to authorize the inference that the bank was insolvent at the time of the transaction, but the evidence as to this issue was mainly, if not entirely, retrospective; and there was no proof whatsoever that the defendants when dealing with the plaintiff had an actual knowledge of such insolvency, it could not have been inferred that the defendants were guilty of fraud in not disclosing the fact to the plaintiff. Hill v. Hicks, 44 Ga. App. 817, 163 S.E. 253 (1932).

- In a suit by an attorney to recover an alleged fee, when no issue of fraud or misrepresentation of material facts, or concealment of such was presented by the pleading or the evidence, it was not error to refuse to permit the plaintiff to read this section in the presence of the jury, nor to refuse to give in charge to the jury the substance of those sections. Edwards v. Watkins, 52 Ga. App. 684, 184 S.E. 437 (1936).

- Representation that a chattel is sound, if honestly made, and believed to be true by the party making them, though not true in fact, is not actionable. Wooten v. Calahan, 32 Ga. 382 (1861).

- After the owner of land represented to the purchaser that there was no encumbrance against the premises sold, thereby inducing the purchaser to purchase it, and it was found later to be encumbered, this constituted a fraudulent representation for which relief will be given to the purchaser. Oliver v. O'Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934).

In a suit by the seller for the purchase money of land, the defendant purchaser is entitled to plead that the purchaser was not put in possession of the premises and that the seller was guilty of false and fraudulent representations as to the existence of liens on the premises, and, upon proof of such facts, a verdict in the plaintiff's favor is authorized. Oliver v. O'Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934).

- Claim that the defendant sellers made false statements, when the defendants told the plaintiff that there was no problem with the horse that would prevent the horse from being shown, was not proved when opinion evidence presented by the plaintiff about the horse's poor prior condition and prognosis was completely refuted by evidence that the horse had successfully competed in horse shows before the sale. Sheffield v. Darby, 244 Ga. App. 437, 535 S.E.2d 776 (2000).

- As between a stockholder and the corporation, unless special circumstances alter the case, the general rule that contracts obtained by fraud may be avoided by the party defrauded applies to a stock subscription induced by the fraud of the company through its authorized agents, and so likewise when only the rights of other shareholders are affected, the company being solvent and "a going concern." Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934).

When action for damages for fraud is instituted, allegation of constructive knowledge is sufficient when the petition alleges that there was constructive knowledge of a defect represented not to exist and that the representation that the defect did not exist was made with the intention of deceiving the vendee. Wade Ford, Inc. v. Perrin, 111 Ga. App. 794, 143 S.E.2d 420 (1965).

- Defendant's fraudulent conduct in connection with unauthorized practice of law provided an evidentiary basis for the jury's verdict as to all five elements of the plaintiff's fraud claim. Ledee v. Devoe, 250 Ga. App. 15, 549 S.E.2d 167 (2001).

- Trial court properly granted a will beneficiary summary judgment on the issue of fraud because there was no evidence in the record that would create a genuine issue of material fact as to fraud since the alleged two misrepresentations were not shown to have been relied upon by the testator when the will was created. Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013).

- Grant of partial summary judgment pursuant to O.C.G.A. § 9-11-56 to a physician in a patient's action alleging breach of fiduciary duty and battery arising from an alleged failure to obtain valid consent prior to performing a medical procedure was erroneous since the physician had represented to the patient that the physician had made the patient's orthopedic surgeon aware of the treatment plans and that the surgeon approved of them, but there was no direct evidence that the surgeon had actually received the plans and had been aware of them and approved of them; accordingly, the jury could have found that the physician misrepresented that situation with an intent to deceive pursuant to O.C.G.A. § 51-6-2(b), which would have constituted sufficient fraud to have vitiated the consent. Petzelt v. Tewes, 260 Ga. App. 802, 581 S.E.2d 345 (2003).

- Trial court did not err by granting a doctor summary judgment in a medical fraud suit because the suing patient failed to present expert testimony as to whether the pre-surgery x-rays should have put a doctor on notice of a deformity as such a determination was not within a layperson's common understanding and experience and, instead, required expert testimony. Johnson v. Johnson, 323 Ga. App. 836, 747 S.E.2d 518 (2013).

- State benefit health plan claims administrator was properly granted summary judgment in an action challenging its review of a physician's corporation's health plan claims because, in part, the administrator had no duty to produce its policies absent a confidential relationship, which was not established merely by the corporation's trust and confidence in the administrator. Brown v. Blue Cross Blue Shield of Ga., Inc., 260 Ga. App. 796, 581 S.E.2d 636 (2003).

- In a dispute between a manager and a member of an LLC over the member's alleged failure to disclose a contractor's financial problems and failure to supervise the contractor in the contractor's site work, issues of fact remained regarding whether the member had a fiduciary duty to inform the manager of the problems. Inland Atl. Old Nat'l Phase I, LLC v. 6425 Old Nat'l, LLC, 329 Ga. App. 671, 766 S.E.2d 86 (2014), overruled on other grounds, 2019 Ga. LEXIS 137 (Ga. 2019).

- While a client's complaint contained a count for fraud, the client failed to allege any specific facts to state a cause of action for fraud pursuant to O.C.G.A. §§ 9-11-9,51-6-1, and51-6-2(b) because the complaint failed to allege any specific facts indicating that a former attorney intentionally made false statements to the client during the course of the representation of the client. Fortson v. Freeman, 313 Ga. App. 326, 721 S.E.2d 607 (2011).

- Establishing an unfair or deceptive act or practice under the Georgia Fair Business Practices Act does not require proof of intentional conduct because the words "volitional" and "intentional" are not synonymous; thus, even if the used car salesperson did not know whether the car had been in a wreck, since the salesperson certainly knew that the salesperson did not know the real condition of the car, the salesperson's misrepresentation could constitute fraud under O.C.G.A. § 51-6-2(b). Marrale v. Gwinnett Place Ford, 271 Ga. App. 303, 609 S.E.2d 659 (2005).

RESEARCH REFERENCES

Am. Jur. 2d.

- 37 Am. Jur. 2d, Fraud and Deceit, §§ 12 et seq., 48 et seq., 137 et seq., 194 et seq.

Misrepresentation in Automobile Sales, 13 Am. Jur. Trials 253.

- 37 C.J.S., Fraud, §§ 18 et seq., 39 et seq.

- May offense of obtaining money or property by false pretenses or confidence game be predicated on obtaining loan or renewal thereof, 24 A.L.R. 397; 52 A.L.R. 1167.

Genuine making of instrument for purpose of defrauding as constituting forgery, 41 A.L.R. 229; 46 A.L.R. 1529; 51 A.L.R. 568.

Fraud of vendee or buyer inducing vendor or seller to accept less favorable terms as sustaining an action in tort, 52 A.L.R. 1153.

Liability of infant in tort for inducing contract by misrepresenting his age, 67 A.L.R. 1264.

Cancellation or rescission of contract for vendee's failure to comply therewith as affecting his right in tort against the vendor for the latter's fraud, 74 A.L.R. 169.

Civil liability of bank officer or director permitting deposit after insolvency of bank, 87 A.L.R. 1402.

Right of action for damages against third person for fraud in inducing marriage, 88 A.L.R. 786.

Illegal or fraudulent intent of prosecuting witness or person defrauded as defense in prosecution based on false representations, 95 A.L.R. 1249; 128 A.L.R. 1520.

Financial statement by borrower as basis of loan or extension of credit, 104 A.L.R. 921.

Concealment of or failure to disclose existence of person interested in estate as extrinsic fraud which will support attack on judgment in probate proceedings, 113 A.L.R. 1235.

Right of public board or officials to rely on misrepresentations by other party to contract relating to matters as to which former had, or should have had, special knowledge in their official capacity, 123 A.L.R. 1063.

Independent advice as essential to validity of transaction between persons occupying a confidential or fiduciary relationship, 123 A.L.R. 1505.

Fraud predicated upon misrepresentation by grantee or transferee regarding grantor's or transferrer's title, 136 A.L.R. 1299.

Duty of vendor of real property to disclose to purchaser condition of building thereon which affects health or safety of persons using same, 141 A.L.R. 967.

Crime of false pretenses as predictable upon present intention not to comply with promise or statement as to future act, 168 A.L.R. 833.

Liability of vendor's real estate broker or agent to purchaser for misrepresentations as to, or nondisclosure of, physical defects of property sold, 8 A.L.R.2d 550.

Misrepresentation as to loan commitment on real estate as ground of action, counterclaim, or rescission by vendee, 14 A.L.R.2d 1347.

Avoidance of release of claim for personal injuries on ground of misrepresentation as to matters of law by tort-feasor or his representative insurer, 21 A.L.R.2d 272.

Misrepresentation as to matters of foreign law as actionable, 24 A.L.R.2d 1039.

False representations as to income, profits, or productivity of property as fraud, 27 A.L.R.2d 14.

Misrepresentation by one other than insurance agent as to coverage, exclusion, or legal effect of insurance policy, as actionable, 29 A.L.R.2d 213.

Misrepresentations as to financial condition or credit of third person as actionable by one extending credit in reliance thereon, 32 A.L.R.2d 184.

Misrepresentation as to third person's present intention as to future act as actionable fraud, 40 A.L.R.2d 971.

False statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 A.L.R.2d 1215.

Tort liability for damages for misrepresentations as to area of real property sold or exchanged, 54 A.L.R.2d 660.

Broker's liability for damages or losses sustained by vendor of real property to vendee because of broker's misrepresentations, 61 A.L.R.2d 1237.

Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistence marriage, 72 A.L.R.2d 949.

Liability of vendor of structure for failure to disclose that it was built on filled ground, 80 A.L.R.2d 1453.

Modern status of rule requiring actual knowledge of latent defect in leased premises as prerequisite to landlord's liability to tenant injured thereby, 88 A.L.R.2d 586.

Criminal responsibility for fraud or false pretenses in connection with home repairs or installations, 99 A.L.R.2d 925.

"Out of pocket" or "benefit of bargain" as proper rule of damages for fraudulent representations inducing contract for the transfer of property, 13 A.L.R.3d 875.

Employer's misrepresentations as to employee's or agent's future earnings as actionable fraud, 16 A.L.R.3d 1311.

Duty of vendor of real estate to give purchaser information as to termite infestation, 22 A.L.R.3d 972.

Employer's misrepresentation as to prospect, or duration, of employment as actionable fraud, 24 A.L.R.3d 1412.

Actionability of conspiracy to give or to procure false testimony or other evidence, 31 A.L.R.3d 1423.

Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property, 61 A.L.R.3d 922.

Liability of bank, to other than party whose financial condition is misrepresented, for erroneous credit information furnished by bank or its directors, officers, or employees, 77 A.L.R.3d 6.

Real estate broker's liability for misrepresentation as to income from or productivity of property, 81 A.L.R.3d 717.

Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449.

Fraud predicated on vendor's misrepresentation or concealment of danger of possibility of flooding or other unfavorable water conditions, 90 A.L.R.3d 568.

Modern status of rule that crime of false pretenses cannot be predicated upon present intention not to comply with promise or statement as to future act, 19 A.L.R.4th 959.

Real estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property, 46 A.L.R.4th 546.

"Wrongful adoption" causes of action against adoption agencies where children have or develop mental or physical problems that are misrepresented or not disclosed to adoptive parents, 74 A.L.R.5th 1.