Cole v. Cates

Per Curiam.

This is a suit by a licensed real estate broker for commissions, and is the second appearance of this case in this court. For a brief statement of count 1 of the petition, the only count involved on this appeal, see Cole v. Cates, 110 Ga. App. 820 (140 SE2d 36). By amendment, the plaintiffs amended their petition (in accordance with the allegations of defendant’s answer) to increase the acreage of the land involved and thus increase the amount of commission alleged to be due. The plaintiffs made an oral motion to strike paragraphs 7 and 8, and paragraphs 10 through 20 of the defendant’s answer on the ground that the said paragraphs failed as a matter of law to constitute a legal defense of fraud. “7. Defendant admits that W. M. McFarland has demanded of him to consummate the sale of his property under said purported contract and that defendant has failed and refused to sell his property under said purported contract because said purported contract was obtained from him by fraud, artifice and deceit. 8. Defendant admits that demand had been made upon him to pay petitioners a commission allegedly due under said purported contract and that he has refused to pay them any such commission because said contract was obtained from him by fraud, artifice and deceit. . . . 10. Defendant specifically denies that he entered into a contract, a copy of which is attached to plaintiff’s petition as Exhibit ‘A’, to sell his land to W. M. McFarland because he did not execute a contract for the sale of his land. 11. Defendant shows he is 85 years of age. 12. Defendant shows that at the time said purported contract was signed he was blind in one eye and that his vision is so impaired in the other eye that he cannot see without glasses and then only in a limited fashion and can read only with glasses and a magnifying glass. 13. That he was well acquainted with one Mason Mobley, a real estate man, and had known him for many years. 14. That defendant was considering the sale of his property and requested said Mason Mobley to come by and see him and did discuss selling the land. That later Mason Mobley returned to defendant’s home and told him he had a paper to list defendant’s property with him as agent so they could advertise and get four or five bids on the land. Whereupon defendant said he would get his glasses to see, but that even with them he couldn’t see very much, whereupon Mason Mobley again told him this is not a contract to sell, but is a contract to list the property with me so we can get some bids on your property and to advertise said property in the Atlanta News Papers for sales and bids. Whereupon defendant trusting and relying upon the statements of Mason Mobley that this was a listing contract to get bids on the property, did sign a listing contract making Mason Mobley his real estate agent to find a suitable purchaser for the true value of the land. 15. That at no time did defendant intend to sell his property for $7,400.00 per acre because his said property has a value of $15,000.00 per acre and that said sum of $7,400.00 is far below the real and actual value of the land. 16. That at the time of signing said listing contract, which plaintiff now contends was a contract for sale of property, defendant believed and was led to believe by the representations of Mason Mobley, that he was employing Mason Mobley to be his agent for listing said property for sale. 17. That immediately upon his learning that Mason Mobley contended that defendant signed a sales contract defendant repudiated said alleged contract. 18. That at the time of defendant signing said listing contract Mason Mobley was the agent, servant, and employee of plaintiffs. 19. That to require defendant to pay plaintiffs would be an unconscionable act. 20. That such acts of Mason Mobley constitute fraud and deceit.” The court, sustained this oral motion and struck the above numbered paragraphs of the answer. After these paragraphs were stricken, the defendant filed the following amendment to his answer: “21. That at the time of the alleged execution of said purported contract the defendant was 84 years of age and was suffering from poor vision resulting from a cataract on his right eye; chronic lymphocytic leukemia; a large hydrocele’ about the left testicle; a bilateral inguinal hernia; enlargement of the prostate gland; and cerebral arteriosclerosis. That all of such ailments had greatly reduced his mental ability. That as between this defendant and Mason Mobley there was a great disparity of mental ability.” Upon consideration of a motion for summary judgment filed by the plaintiffs, and affidavits in opposition thereto, the court entered a summary judgment in favor- of the plaintiffs for $8,235.46 principal, $1,392 interest and costs of court. The defendant appeals from this judgment and enumerates as errors: 1. The sustaining of the plaintiffs’ oral motion to strike the above enumerated paragraphs of the defendant’s answer. 2. The rendition of the summary judgment by the Civil Court of Fulton County oh the ground that it does not have jurisdiction to issue a summary judgment. 3. That the court erred in rendering the summary judgment because the pleadings, depositions and admissions and affidavits show there were genuine issues as to material facts in the case and that the appellees were not entitled to- a judgment as a matter of law.

While the Civil Court of Fulton County, when first created as the Municipal Court of Atlanta (Ga. L. 1913, p. 145, et seq.) may not have been a court of record, yet, in view of the- amendatory Acts relating to the keeping of minutes, etc. (Sec. 4 of Ga. L. 1914, pp. 178, 181; Sec. 4 of Ga. L. 1925, pp. 370, 389; Sec. 1 of Ga. L. 1956, pp. 3271, 3273, striking Sec. 4 and enacting a new section known as 23a; Sec. 1 of Ga. L. 1951, pp. 3105, 3107, striking Sec. 23 of the original Act as amended by the Act of 1925, and enacting a new Sec. 23 which provides that the Clerk of the Civil Court of Fulton County “shall perform in said court the same duties that are required of the Clerk of the Superior Court of said county so far as the same are applicable to and not inconsistent with the provisions of this Act . . .”), the Civil Court of Fulton County is now a court of record (Ozburn v. National Union Fire Ins. Co., 45 Ga. App. 33 (163 SE 321) and as such has jurisdiction to render summary judgments under the Act of 1959 (Ga. L. 1959, pp. 234, 236; Code Ann. § 110-1209). No such requirements are contained in the Act creating the Civil and Criminal Court of DeKalb County, and the case of DeKalb County v. Deason, 221 Ga. 237 (144 SE2d 446) is, therefore, not authority for a ruling to the contrary, but sustains the ruling here made.

“The often announced rule that one having the capacity and opportunity to read a written contract and who signs it, not under any emergency, and whose signature is not obtained by any trick or artifice of the other party, but solely on the representations of the other party as to its contents, cannot after-wards set up fraud in the procurement of the signature of the instrument, Truitt-Silvey Hat Co. v. Callaway & Truitt, 130 Ga. 637 (61 SE 481), Lewis v. Foy, 189 Ga. 596 (6 SE2d 788), is but another statement of the rule that one cannot claim to be defrauded by the false representations of another, where, by the exercise of ordinary diligence, such person could have discovered the falsity of the representations before acting thereon; and, . . . there is a wide difference between that class of cases in which one can read and those where one, from illiteracy or ignorance, is unable to read the writing he is induced to sign, and has to rely upon the representations made by the draftsman, Lee v. Loveland, 43 Ga. App. 5 (2b) (157 SE 707), to the extent that one who cannot read 'may, ordinarily, rely upon the representation of the other party as to what the instrument is, or as to what it contained; and his mere failure to request the other party, or someone else, to read it to him will not generally be such negligence as will make the instrument binding upon him/ Grimsley v. Singletary, 133 Ga. 56, 58 (65 SE 92, 134 ASR 196); Pirkle v. Gurr, 218 Ga. 424 (128 SE2d 490), Mutual Savings Life Ins. Co. v. Hines, 96 Ga. App. 442 (100 SE2d 466), cp. Southern Fertilizer &e. Co. v. Carter, 21 Ga. App. 282 (1) (94 SE 310).” Smith v. Agon, 111 Ga. App. 536 (1) (142 SE2d 291). Here, the party was able to read. Under these circumstances, the representations by the other party that the contract was only a listing contract, when in fact it was a contract of sale, would not be such trick or artifice as would amount to fraud. In West v. Carolina Housing &c. Corp., 211 Ga. 789 (89 SE2d 188), the “often announced rule” first stated above was stated in the first division of the opinion and applied in the second division of the opinion as follows: “The petitioners’ allegations, as finally amended, being that they were ignorant colored people, practically illiterate, and totally incapable of reading and understanding the nature of the papers presented to.them for their signature; that it was late at night, and there was no one to turn to for advice and guidance at that time; and that they were, therefore, required to rely upon the representations of the agents of one of the defendants, which were false, are totally insufficient to relieve them of due diligence or to show any emergency making it necessary for them to sign without delay; and there being no fiduciary relationship between the parties, the petition fails to allege a cause of action, and the court did not err in sustaining the demurrer and in dismissing the petition.” The mere fact that the defendant had confidence in the party with whom he contracted does not constitute a confidential relationship or a “similar relationship of mutual confidence” within the meaning of Code § 37-707 (Dover v. Burns, 186 Ga. 19, 26 (196 SE 785) so as to require the application of Code § 37-708. Even if we should assume that the proposed contract, which the defendant thought he was entering into, did create a confidential relationship between the parties, this cannot be twisted by fallacious reasoning into a confidential relationship prior thereto. A confidential relationship does not exist prior to the contract or legal relationship creating it, unless it exists for other reasons. See Ingram v. Rooks, 221 Ga. 701 (2) (146 SE2d 743). Here there are no other reasons recognized by statute or by any court decision of this State. We have found no such decision, and we presume the minority has not, since none is cited to sustain the minority ruling of confidential relationship. Our sympathy is with the defendant, under the facts alleged in his answer, and we do not entirely agree with the law announced in the cases; however, it is the duty of this court to apply the law regardless of individual disagreement with the established rule to be applied. In view of the decisions of the Supreme Court, by which we are bound, and in view of the numerous decisions of this court to the same effect, we are constrained to hold that the trial court did not err in sustaining the demurrers to the answer of the defendant and in granting the summary judgment for the plaintiff.

Judgment affirmed.

Bell, P. J., Hall, Eberhardt, Pannell and Deen, JJ., concur. Felton, C. J., Nichols, P. J., Frankum and Jordan, JJ., dissent.