Seymore v. Rice

Supreme Court of Georgia1894-07-23

94 Ga. 183

Summary · law.co

Holding. The trial court correctly required the plaintiff to elect between his fraud and breach-of-warranty theories and properly struck warranty allegations from the complaint. However, the trial court erred in granting a nonsuit, as sufficient evidence of fraudulent misrepresentation existed to allow the jury to decide whether the defendant committed intentional deceit. The judgment is reversed.

Seymore purchased land from Rice and received a warranty deed describing the property as containing 170 acres. Seymore later sued Rice seeking to recover part of the purchase price, alleging that Rice had fraudulently misrepresented the quantity of land. The original declaration combined two separate legal theories: fraud and breach of warranty. At trial, the court required Seymore to choose between proceeding on a fraud theory or a contract breach theory, then struck the warranty allegations from the complaint as unnecessary.

The court upheld both the election requirement and the removal of warranty allegations as proper applications of state law. A plaintiff cannot join a single action combining tort claims with breach-of-contract claims; separate remedies must be pursued independently. Here, the trial judge had also granted a nonsuit, preventing the case from reaching the jury. The appellate court determined that sufficient evidence existed to support a fraud claim—the surveyed land contained only 119 acres instead of the represented 170, a 30 percent deficiency—and that the question of intentional deceit was properly a matter for the jury to resolve.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a plaintiff may join claims sounding in tort with claims sounding in contract in a single action
Whether a significant deficiency in land quantity—30 percent fewer acres than represented—constitutes sufficient evidence of fraud to submit to a jury
Whether the question of willful deceit in land sales is a legal question for the court or a factual question for the jury

Procedural posture

The case originated with a verdict for the plaintiff at the first trial; the trial judge granted a new trial and that judgment was affirmed on appeal; at the second trial, the court granted a nonsuit in favor of the defendant.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lumpkin, Justice.

It appears from the record that Seymore bought a .tract of land from Eice, paid for it, and took from Eice a warranty deed. Afterwards, Seymore brought an action against Eice to recover a portion of the price paid for the land, because of an alleged deficiency in the quantity of it. The first trial of the case resulted in a. verdict for the plaintiff; the trial judge granted a new trial, and his judgment was affirmed by this court. 89 Ga. 372.

As originally filed, the declaration was- based both on the alleged fraud and deceit of Eice in making representations to Seymore as to the quantity of the laud, and also upon the breach of warranty expressed in the deed. At the last trial, the court required the-plaintiff to- elect between these two remedies, so as to confine him to a recovery either for the deceit or the breach of warranty. Under this ruling, the plaintiff elected to treat the action as one ex delicto and to proceed for the fraud and deceit. Thereupon, the court ordered all the allegations in the declaration touching the warranty and a breach thereof to be stricken as superfluous. The bill of exceptions assigns error, both. upon requiring the plaintiff to make the election, and upon striking from the declaration the allegations mentioned. The court was right in both rulings. A plaintiff* may join in the same action all claims against the-defendant arising ex contractu; and all claims arising ex delicto may in like manner be joined; but he cannot join in the same action two distinct claims, one sounding in contract for the breach thereof, and the other in tort. Code, §3261. It often happens that a party may sue-either for a tort or for the breach of a contract, but in such cases he must elect on which he will proceed.. Code, §3063. It is therefore plain that the court was right in requiring the plaintiff* to make his election; and this being so, it follows beyond doubt that the declaration ought to have been cleared of all unnecessary and irrelevant allegations.

The deed from Rice to Seymore described the land as containing 170 acres, more or less. The evidence clearly showed that, by actual survey made subsequently to the execution of the deed, the tract really contained only 119 acres, showing a deficiency of 51 acres, which amounted to exactly 30 per cent, of the quantity specified in the deed. There was other evidence tending to-show that in the oral contract of sale, or in the negotiations which led up thereto, Rice positively represented the land to contain 170 acres; that the plaintiff* believed this representation, and on the faith of it paid the whole of the purchase money some time before discovering that the deficiency existed. Taken all together, there was enough evidence to carry the case to the jury, and the court should not have granted a nonsuit. The deficiency of 51 acres in a tract of this size was quite considerable, and it was the province of the jury, and not of the court, to say whether or not Riee was guilty of actual and willful deceit in making the sale.

Judgment reversed.