Sawyer v. Birrick

Bell, J.

(After stating the foregoing facts.)

The claim which is alleged to have been made by the defendant upon the plaintiff and to which the plaintiff acceded is one which in its very nature suggested the need of inquiry, certainly as to the amount. Askew v. Central Trust Co., 26 Ga. App. 122 (1) (106 S. E. 198). There are no allegations to show that the plaintiff was prevented from ascertaining the extent of the damage alleged to have been done by his son to the defendant’s safe, or that the means of knowledge were not easily at hand. When the means of knowledge are at hand and equally available to both parties to a contract, if one of them does not avail himself thereof he will not be heard later to say in impeachment of the contract that he was deceived by the representations of the other. The burden is upon him to show not only that he relied upon the representations, but that in doing so he was not wanting in the proper diligence. What degree of diligence or caution should be exercised in a transaction of this sort, -whether the same as in the purchase of land, need not be determined in the case before us, because the petition fails to disclose the exercise by the plaintiff of any diligence whatsoever. So far as appears, he was the victim of his own credulity. No right of reliance is shown. In the absence of allegations to show why the representations should have been believed, the petition failed to set forth a cause of action, and the general demurrer thereto was properly sustained. Brooks v. Boyd, 1 Ga. App. 65 (1) (57 S. E. 1093); Miller v. Roberts, 9 Ga. App. 511 (2) (71 S. E. 927); Wrenn v. Truitt, 116 Ga. 708 (43 S. E. 52); Hayslip v. Fields, 142 Ga. 49 (1) (82 S. E. 441); Miller v. Ozburn Realty Co., 18 Ga. App. 768 (1) (90 S. E. 652); Perdue v. Harwell, 80 Ga. 150 (2) (4 S. E. 877); Smith v. Shinn, 31 Ga. App. 356 (120 S. E. 647); Rutland v. Parham, 32 Ga. App. 662 (1) (124 S. E. 355).

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.