Opinion
45333.
ARGUED MAY 6, 1970.
DECIDED JULY 6, 1970.
Trover. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Verlyn C. Baker, James C. Abernathy, for appellant.
Charles O. Beard, Jr., for appellee.
As between the original parties to the transaction, trover will lie upon rescission of a contract of sale where there has been actual fraud. Under the plaintiff's evidence in this case it was error to direct a verdict for the defendant.
ARGUED MAY 6, 1970 — DECIDED JULY 6, 1970.
Mrs. Ruth Fried executed a bill of sale to the defendant for certain jewelry which is the subject of this trover action, delivering all the jewelry to him except certain pieces which were in pledge and which the defendant redeemed for a cash payment of $1,650. She thereafter brought a three-count trover action to recover the jewelry. Count 1 is in simple Jack Jones form; Count 2 alleges that the jewelry was delivered in a trust capacity, that the bill of sale was procured by duress and misrepresentations, that the purpose of the trust was never consummated and defendant refuses to deliver it. Count 3 seeks punitive damages for wilful and intentional fraud. Upon the trial of the case the evidence was in conflict on several issues, including the value of the property and the purpose for which the bill of sale was executed. The defendant is an attorney and this transaction appears to have been part of an effort to save a business known as Sam's Enterprises, Inc., but whether the corporation was owned by the plaintiff and her husband, Sam Fried, jointly or by the husband alone is in dispute. Several actions were pending against the husband and the corporation, and the defendant spent some money after receiving the jewelry to reimburse the holder of a bad check issued by Sam Fried and also turned over $1,400 to the attorney of the opposite party in a pending action referred to as the Lansky suit which had been filed against plaintiff's husband. Defendant contends that he was employed by both the plaintiff and her husband; plaintiff contends that the defendant never represented her, that she had no interest in the business, that the jewelry was delivered because of certain representations by the defendant that Lansky had to be paid off or her life would be in danger and that money should be raised for this purpose by securing a loan on the jewelry, which he could do but which it would be dangerous for her to undertake. She contends that all these representations were untrue. There is considerable evidence of legal services performed on behalf of the plaintiff's husband and money expended in his behalf by the defendant but whether these services were contracted for by the plaintiff and whether or not the bill of sale was intended as security only are also disputed points. At the conclusion of the evidence the trial judge directed a verdict for the defendant and this judgment is enumerated as error.
An action for mere breach of warranty unmixed with fraud sounds in contract, not tort; but where there has been actual fraud mixed with deceit and corruption the party defrauded has his election to sue on the warranty or to bring trover for the property relinquished by him. Yeomans v. Jones, 54 Ga. App. 330 ( 188 S.E. 62); Dawson v. Pennaman, 65 Ga. 698. Under the defendant's evidence in this case a verdict in his favor would be demanded. The plaintiff, however, testified that she never employed the defendant attorney; that she owned no part of her husband's business and was not involved in the various lawsuits relative to it; that she was afraid of Lansky, who had made threats against the family; that she felt Lansky's suit against her husband should be defended; that the defendant advised her that the Lansky suit should be settled and "that I'd better go ahead and give him those [pieces of jewelry] too, that it would be perfectly all right, that it would all be straightened out and that I would be getting the jewelry back, there was nothing wrong with his taking the jewelry ... he was going to take it to Jefferson Jewelers and take out a loan and to use that money to pay off Mr. Lansky." No loan was ever made, and defendant retained the jewelry. He paid out $3,870.58 on behalf of either plaintiff or her husband or both. The value of the jewelry was also disputed, being between the figures of $4,000 and $12,000. Whether defendant rendered any legal services directly to the plaintiff was also in dispute. Plaintiff might well have hired the defendant to represent either herself or her husband; she might have had an interest in the business and authorized the payment of the value of the jewelry or a part thereof on business debts. But if she did not have any ownership in the business and did not employ the defendant, she could not sell her separate estate composed of tangible personal property to a creditor of her husband in extinguishment of his debts. Code Ann. § 53-503; Reid v. People Bank, 220 Ga. 368 ( 138 S.E.2d 876). (While these events took place prior to the amending statute, Ga. L. 1969, pp. 72, 73, the rule as to personal property is the same.) If, as plaintiff swears, the jewelry was transferred for a special purpose only, known to the defendant, and he took it not for that purpose but to pay certain debts of the husband and retain the balance as a fee owed him by the husband this would be a sufficient fraud on the plaintiff's rights to justify her in rescinding and bringing a trover action to recover the property. These issues are for jury determination, and it was error to direct a verdict in favor of the defendant.
Judgment reversed. Hall, P. J., and Evans, J., concur.