Barnette v. Peace , 196 Ga. App. 440 ( 1990 )

Deen, Presiding Judge,

dissenting.

In James v. Elliott, 44 Ga. 237, 242 (1871), the Supreme Court held that “where fraud upon the part of a vendor induces the vendee to lay out labor, time and expense, of the fruits of which he is deprived, his injury is to be estimated by the amount of damage he has actually suffered.” The majority opinion correctly recognizes this as an exception to the general measures of damage, i.e., showing the difference between the value of the thing sold at the time of delivery and what its value would have been had the seller’s representation about it been true, or showing the reasonable cost of correcting the defect, but misapplies that exception to the instant case.

One of the elements of this exceptional rule is that the vendee must be deprived of the “fruits” of the “labor, time and expense.” In James v. Elliott, the vendee expended money to set up a brickmaking operation before discovering the deception about the inclusion of clay-bearing land in the lot he had purchased. Without the clay-bearing land, the brickmaking operation was of no benefit to the vendee; he was deprived of the “fruits” of his labor and expenses.

In the instant case, however, the appellees expended $18,231.57 to finish the shell into a home, in which they still reside. They have in no way been deprived of the benefit of those expenditures. Under these circumstances, recovery for the $18,231.57 was unauthorized and must be stricken from the judgment; otherwise, we must reverse. I must dissent from the majority opinion’s affirmance of the judgment which includes an award for those expenses for home improvements.

I am authorized to state that Chief Judge Carley and Judge Sognier join in this dissent.

Decided July 16, 1990. Archer & Howell, Shepherd L. Howell, Charles Crawford, for appellant. David C. Keever, for appellees.