Knowledge of seller that product unavailable.

- Salesman fraudulently induced customers to execute a sales contract by representing that "blue sculpted" carpet was available when he knew it was not or recklessly asserted the fact with intent to deceive. Country Pride Homes, Inc. v. DuBois, 201 Ga. App. 740, 412 S.E.2d 282 (1991).

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).

Cited in Hixon v. Hinkle, 156 Ga. 341, 118 S.E. 874 (1923); Mangham v. Cobb, 160 Ga. 182, 127 S.E. 408 (1925); Nix v. Citizens Bank, 35 Ga. App. 55, 132 S.E. 249 (1926); Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 144 S.E. 400 (1928); Hamlin v. Johns, 166 Ga. 880, 144 S.E. 659 (1928); Lancaster v. Neal, 41 Ga. App. 721, 154 S.E. 386 (1930); Equitable Bldg. & Loan Ass'n v. Brady, 175 Ga. 43, 164 S.E. 674 (1932); Wall v. Wall, 176 Ga. 757, 168 S.E. 893 (1933); Roper v. White, 178 Ga. 293, 173 S.E. 115 (1934); Dover v. Burns, 186 Ga. 19, 196 S.E. 785 (1938); Crowell v. Brim, 191 Ga. 288, 12 S.E.2d 585 (1940); Norwood v. Norwood, 207 Ga. 148, 60 S.E.2d 449 (1950); Patterson v. Correll, 92 Ga. App. 214, 88 S.E.2d 327 (1955); Sorrells v. Atlanta Transit Sys., 218 Ga. 623, 129 S.E.2d 846 (1963); Walsh v. Campbell, 130 Ga. App. 194, 202 S.E.2d 657 (1973); Thibadeau Co. v. McMillan, 132 Ga. App. 842, 209 S.E.2d 236 (1974); City of Jesup v. Spivey, 133 Ga. App. 403, 210 S.E.2d 859 (1974); Clements v. Warner Robins Supply Co., 235 Ga. 612, 221 S.E.2d 35 (1975); North Peachtree I-285 Properties, Ltd. v. Hicks, 136 Ga. App. 426, 221 S.E.2d 607 (1975); McClure v. Thomas Cook, Inc., 158 Ga. App. 467, 280 S.E.2d 876 (1981); Everson v. Franklin Disct. Co., 248 Ga. 811, 285 S.E.2d 530 (1982); Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 294 S.E.2d 533 (1982); Rhodes v. Perimeter Properties, Inc., 187 Ga. App. 55, 369 S.E.2d 332 (1988); O'Brien v. Union Oil Co., 699 F. Supp. 1562 (N.D. Ga. 1988); Johnson Realty, Inc. v. Hand, 189 Ga. App. 706, 377 S.E.2d 176 (1988); Vickers v. Roadway Express, Inc., 210 Ga. App. 78, 435 S.E.2d 253 (1993); In re Dukes, 213 Bankr. 202 (Bankr. S.D. Ga. 1997); Sellers Bros., Inc. v. Imperial Flowers, Inc., 232 Ga. App. 687, 503 S.E.2d 573 (1998); GE Life & Annuity Assur. Co. v. Donaldson, 189 F. Supp. 2d 1348 (M.D. Ga. 2002); GE Life & Annuity Assur. Co. v. Barbour, 189 F. Supp. 2d 1360 (M.D. Ga. 2002); McBride v. Life Ins. Co., 190 F. Supp. 2d 1366 (M.D. Ga. 2002); GE Life & Annuity Assur. Co. v. Barbour, 191 F. Supp. 2d 1375 (M.D. Ga. 2002); GE Life & Annuity Assur. Co. v. Combs, 191 F. Supp. 2d 1364 (M.D. Ga. 2002); J'Carpc, LLC v. Wilkins, 545 F. Supp. 2d 1330 (N.D. Ga. 2008).

Election of remedies.

- When a vendee is induced to enter into a contract for the purchase of land by the fraud of the vendor, when the former discovers the fraud he has an election of remedies. One of such remedies is to rescind the contract, and another is to affirm the contract and sue for damages for the fraud. Price v. Mitchell, 154 Ga. App. 523, 268 S.E.2d 743 (1980).

Rescission of transaction based on misrepresentation authorized.

- Material misrepresentation, made for the purpose of inducing another to execute a promissory note, will authorize the maker, after executing the note, to rescind the transaction on discovery, of the fraud, if he relied upon the representation and was induced thereby to execute the note. Thompson v. Wilkins, 143 Ga. App. 739, 240 S.E.2d 183 (1977).

A promise to do a certain thing for the benefit of the promisee, made to induce his entrance into a contract, the promisee earnestly believing that he would receive the benefits consequent upon the fulfillment of the promise, when at the time of making the promise there was no intention on the part of the promisor to fulfill it, but, on the contrary, the promise was made with intent not to fulfill it and was uttered as a mere scheme or device to defraud, is such a fraud as will void any contract induced thereby. A promise thus fraudulently made will authorize rescission of a written instrument purporting to be a contract. Price v. Mitchell, 154 Ga. App. 523, 268 S.E.2d 743 (1980).

Constructive fraud, as well as actual fraud, voids the contract at the election of the injured party, and may authorize a rescission of a written release from liability. Southeastern Greyhound Lines v. Fisher, 72 Ga. App. 717, 34 S.E.2d 906 (1945).

A material representation falsely made by a vendor to a vendee to induce a sale, and made with knowledge of its falsity and acted upon to the vendee's injury, amounts to actual fraud, and will void a contract, and authorize rescission by the vendee if he acts promptly after discovery of the fraud and restores or offers to restore whatever of value he has received by virtue of the contract. Price v. Mitchell, 154 Ga. App. 523, 268 S.E.2d 743 (1980).

Damages generally.

- Misrepresentation of a material fact, made by one of the parties to a contract, though made by mistake, and innocently, if acted on by the opposite party, constitutes legal fraud, and the party injured in consequence thereof may set up the damages thus arising in defense to an action upon the contract. Morton v. W.T. Tharpe & Co., 41 Ga. App. 788, 154 S.E. 716 (1930).

Where a vendor agrees to sell a designated tract of land to another and points out to the latter its boundaries and where such boundaries include lands to which the vendor has no title, in consequence of which the purchaser loses the same, the purchaser can setoff at law the value of the portion of the land so lost, against the purchase money whether the representations were designedly made by the vendor to deceive the purchaser, or were innocently made. Bonner v. Cotton, 223 Ga. 843, 159 S.E.2d 61 (1968).

Where there is a material misrepresentation, a policy (of insurance) may be voided. State Farm Mut. Ins. Co. v. Anderson, 107 Ga. App. 348, 130 S.E.2d 144, cert. dismissed, 219 Ga. 211, 132 S.E.2d 556 (1963).

Where insured furnished false evidence which was relied upon by the insurance company in reinstating insurance policies he was guilty of fraud in law which would void the policy, whether he was in good or bad faith and whether he intended to deceive or not. New York Life Ins. Co. v. Odom, 93 F.2d 641 (5th Cir. 1937), cert. denied, 304 U.S. 566, 58 S. Ct. 948, 82 L. Ed. 1532 (1938).

Ordinary diligence required of party claiming injury.

- One cannot claim to be defrauded by the false representation of another where, by the exercise of ordinary diligence, such person could have discovered the falsity of the representations before acting thereon. Barrett v. Independent Order of Foresters, 625 F.2d 73 (5th Cir. 1980).

An equitable action to cancel a deed on the ground of fraud, which clearly shows that the complainant failed to use even slight diligence to discover the fraud, fails to allege a cause of action. Courts of equity will not grant relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the action. Whitfield v. Whitfield, 204 Ga. 64, 48 S.E.2d 852 (1948).

Blind reliance exists where it cannot be said that the purchase originated in fraud so much as in the carelessness of the purchaser to exercise ordinary care for his own interest. Adkins v. Lee, 127 Ga. App. 261, 193 S.E.2d 252 (1972).

While the doctrine of caveat emptor would charge the purchaser with looking out for the title which the seller had to the tract offered for sale as his, it would not charge him with looking out for the boundaries of that tract when the seller undertook to locate and point them out, thus professing to know them sufficiently to enable them to furnish this information to purchasers instead of leaving the latter to their own resources in acquiring the information. Bonner v. Cotton, 223 Ga. 843, 159 S.E.2d 61 (1968).

Failure to open trunk of car represented as new.

- It cannot be said as a matter of law that failure of plaintiff to open trunk of car represented as new in order to inspect for damage, either at time of purchase or within three and a half months thereafter amounted to failure of due diligence. Horne v. Claude Ray Ford Sales, Inc., 162 Ga. App. 329, 290 S.E.2d 497 (1982).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Equity, § 20. 37 Am. Jur. 2d, Fraud and Deceit, § 247 et seq.

Conveyance with Intent to Defraud Creditors, 5 POF2d 697.

False Representation as to Quality or Character of Product, 35 POF2d 255.

C.J.S.

- 30 C.J.S., Equity, § 48. 37 C.J.S., Fraud, §§ 3, 19 et seq.

ALR.

- Misrepresentation as regards validity of conveyance or transfer of property as fraud, 9 A.L.R. 1051.

False representations in business transaction as within statute relating to 'confidence game,', 9 A.L.R. 1527, 56 A.L.R. 727.

Seller's concealment of ownership of other property inducing exclusion of same from contract as actionable fraud, 26 A.L.R. 990.

Promises and statements as to future events as fraud, 51 A.L.R. 46, 68 A.L.R. 635, 91 A.L.R. 1296, 125 A.L.R. 879.

Misrepresentation as to market price or market value as fraud, 71 A.L.R. 622.

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.

Purchaser's misrepresentations as to intended use of real property as ground for vendor's equitable relief from contract and deed, 35 A.L.R.3d 1369.

Consumer class actions based on fraud or misrepresentation, 53 A.L.R.3d 534.

Modern status of rules regarding materiality and effect of false statement by insurance applicant as to previous insurance cancellations or rejections, 66 A.L.R.3d 749.

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.

Misrepresentation in proxy solicitation - state cases, 20 A.L.R.4th 1287.

Vendor's action against vendee's prospective lender for misrepresentation respecting or failure to complete loan commitment, 30 A.L.R.4th 474.

Misrepresentation regarding sterility or use of birth control, 31 A.L.R.4th 389.

Liability of termite or other pest control or inspection contractor for work or representations, 32 A.L.R.4th 682.

Remedies for fraud or misrepresentation as to heating or cooling costs of realty purchased, 32 A.L.R.4th 828.

Real-estate broker's or agent's misrepresentation to, or failure to inform, vendor regarding value of vendor's real property, 33 A.L.R.4th 944.

Sexual partner's tort liability to other partner for fraudulent misrepresentation regarding sterility or use of birth control resulting in pregnancy, 2 A.L.R.5th 301.

Parent's child support liability as affected by other parent's fraudulent misrepresentation regarding sterility or use of birth control, or refusal to abort pregnancy, 2 A.L.R.5th 337.