Southern v. Floyd , 89 Ga. App. 602 ( 1954 )

89 Ga. App. 602 (1954) 80 S.E.2d 490

SOUTHERN et al.
v.
FLOYD.

34941.

Court of Appeals of Georgia.

Decided February 5, 1954.

Quillian & Thomas, Alfred A. Quillian, for plaintiff in error.

Jess H. Watson, contra.

NICHOLS, J.

1. If there is a concealed defect, known to the seller, in property being sold, the seller is bound to reveal it to the purchaser (Davis v. Hopkins, 50 Ga. App. 654, 179 S.E. 213; Woodward v. Miller, 119 Ga. 618, 46 S.E. 847, 64 L. R. A. 932, 100 Am. St. Rep. 188; Stovall v. Rumble, 71 Ga. App. 30, 29 S.E.2d 804); and although the purchaser signs a contract of sale which provides that it contains the entire agreement between the parties and that no representation, statement, or inducement except as therein noted shall be binding upon either party, this provision does not relieve the seller from performing his duty to disclose the concealed defect to the purchaser, either by a statement in the contract or otherwise.

2. Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover (Code § 96-203); and misrepresentation may be perpetrated by acts as well as words, and by artifices designed to mislead. Code § 96-202.

3. The petition in this case contains allegations that the seller of a house and lot concealed a broken place in the boiler of the furnace with a temporary filling, so that it could not have been and was not discovered by the purchasers, who exercised ordinary care in examining the premises, and that, upon inquiry by the purchasers concerning the condition of the heating system, the seller evasively stated that one of the radiators would not heat well, when in fact the furnace would not heat the house, because of the break in the boiler. Notwithstanding the provision of the sales contract that only the inducements therein noted were binding, the petition set out a cause of action for deceit, as the alleged artifice was designed to prevent the purchasers from ascertaining, by the exercise of ordinary diligence in examining the premises, facts which might have prevented them from purchasing. It has been held that the effect of a provision against representations made but not set out in the contract is to show that the purchaser relied on his own judgment and not on the seller's parol statements, fraudulent or not (Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 16 S.E.2d 176); but such a provision is without application in the present case, where the fraud alleged to have been perpetrated was such as to prevent the purchasers from exercising their own judgment.

4. The court erred in sustaining the general demurrer to the petition.

Judgment reversed. Felton, C. J., and Carlisle, J., concur. Quillian, J., disqualified.