Opinion
35986.
DECIDED FEBRUARY 21, 1956.
Action for damages. Before Judge Crow. Mitchell Superior Court. October 3, 1955.
Louis H. Foster, for plaintiff in error.
Frank S. Twitty, Sr., Charles R. Adams, Jr., contra.
The petition as amended did not state a cause of action against the defendants for deceit; therefore the court did not err in sustaining the general demurrer and in dismissing the action.
DECIDED FEBRUARY 21, 1956.
E. M. Mills sued Escambia Treating Company, Lewis Wood Preserving Company and Timber Suppliers, Inc., for deceit. The petition was originally amended four times. One amendment was withdrawn. The petition with the remaining three amendments is so voluminous, repetitious and conflicting that we will only set out the plaintiff's contentions as we conclude them to be from the pleadings. Those contentions are: that the defendants are engaged in the business of buying living pine trees, cutting them in one piece, peeling them and trucking them to the defendant's preserving plant where they are treated; that Timber Suppliers, Inc., is the procurer of timber for the other defendants and cuts and hauls timber procured to the preserving plant; that on or about May 5, 1955, one Fivash, agent of the defendants, orally contracted with the plaintiff to buy the plaintiff's timber for the defendants; that Fivash agreed to pay the plaintiff for such timber a price ranging from a minimum of $3 per tree to a maximum of $37.60 per tree net to the plaintiff; that under such arrangement the defendants cut, peeled and hauled away 710 trees valued at $5,000 for which the plaintiff has received nothing by way of payment and which amount is due; "that the possession of the aforesaid trees of the plaintiff's were obtained by the fraud and deceit of the defendants, singly, jointly and collectively through the conduct of their agent, the aforesaid Fivash, by reason of the following stated facts, to wit: That on or about the 17th day of May, 1955, plaintiff discovered for the first time that the defendants and each of them were claiming that they had a contract with plaintiff with reference to said timber which they had then removed from plaintiff's land whereby they were to retain 40% of the value of said trees thus removed, that is to say that he had agreed to pay the defendant Timber Suppliers, Incorporated 40% of the value of said trees to cut, peel, haul and deliver to the plant of the other defendants and had authorized the other defendants to withhold this sum for said named defendant from this plaintiff, all of which was and is untrue, false and deceitful and a scheme and device by which they obtained possession of plaintiff's timber aforesaid and they have disposed of same without paying plaintiff therefor its value or any part thereof," "that all of plaintiff's timber that the defendants and each of them took off of his said land . . . was a good grade of timber and was of uniform size and according to length, and sound and the same was cut down and cut into one piece and hauled away in such condition, and the defendants and each of them engaged in the following deceitful means and artful practices in handling the same, in that they did not properly grade and measure it at their plant and fraudulently sealed it as to length and did knowingly and falsely say to plaintiff that they had only received 682 trees, leaving 28 trees they took from plaintiff's land unaccounted for and 4,365 running feet unaccounted for in any way or manner whatsoever"; "that the defendant actually cut and moved away 710 trees measuring in length 27,640 feet, set out in paragraph 18 A herein, is true. Their report as set out in paragraph 18 B and 18 C shows they received only 682 trees measuring in length 23,285 feet, showing a shortage [of] 28 trees and 4,365 feet and is false. This shortage of value in 30-foot pieces would amount to 145 1/2 pieces @ minimum value of $3 would amount to $436.50 which would make this report to us absolutely false on this issue"; that the common practice in the area among sellers of timber and the defendants was that 40% of the selling price of the timber would be paid to Timber Suppliers, Inc., for the cutting, peeling and hauling of the timber and that Fivash, at the time he made the contract with the plaintiff, knew of such practice but wilfully withheld such information from the plaintiff; "that this deceit and fraud as herein charged was all wilfully and maliciously exercised against this plaintiff by the defendants, that all their acts and doings and especially not paying in the way and manner indicated by the promise of their agent and the only person that acquired any right to cut plaintiff's timber at all Fivash promised to do and the withholding of what [defendants] later offered him and tried to get him to accept and the shortage in the offer on the minimum price to plaintiff, the fraud in measuring and grading plaintiff's said timber, all go to show that it was the deliberate intent of the defendants to defraud the plaintiff in the beginning of the transaction by making him the offer as made by the agent Fivash and in concealing from him their mode of operation as herein set out and of which he knew nothing until after the damage was done which he says was conceived in fraud because of the knowledge of all the defendants about the matter of withholding 40% or $933.48 out of what price plaintiff was to receive without his consent or knowledge beforehand all goes to show [plaintiff] insists as a matter of fact that it was conceived in fraud and executed in fraud of this plaintiff's right by all the defendants herein sued"; that as to the shortages and measurement of the timber the defendants "did so take it and carry the same away from plaintiff's lands and absolutely refused to account to plaintiff the proper measurements and to pay him anything at all for this shortage, which was and is of the value of the amount hereinbefore set out in this paragraph and throw it away, or make a false return about the amount which they wilfully and fraudulently did take, and they did make such false report as before stated herein and plaintiff did not know and all of the defendants did know that said false report was being made and was later given to plaintiff after he had stopped them from cutting any more of his said timber, which he did so immediately on discovering of each and all of the wilfully fraudulent statements in this amendment set out at one time and the defendants knew from the very beginning of the contract and before it was made that they expected to break the terms of same in every particular as is evidenced by what they later did do wilfully and maliciously as before stated"; "that the statement made by the defendant's agent Fivash, that his principals would pay the price of not less than $3 minimum for stumpage net at the stump on plaintiff's land, was fraudulently and recklessly made, with the intent and purpose of deceiving the plaintiff and did deceive him in that the said Fivash had been working for the defendants some time and knew that the statement was untrue at the time, and his conduct was wilfully deceptive, in that he withheld the information that 40% of the price paid per tree, or offered to plaintiff, would not be paid to him net, but would be taken out of the price to pay for hauling, which would further reduce the net to plaintiff on all his trees below the minimum price of $3 per tree net to plaintiff and the same was confusing and misleading and was knowingly and purposely deceptive and he acted on this wilful misrepresentation to his actual injury and damage for lack of further knowledge which was in the power of the said Fivash to give, and which he should have given at said time to plaintiff and prevented the injury done to him as aforesaid and was falsely and recklessly made with the intention to deceive the plaintiff and did deceive him and the plaintiff did not know that said statements were false at said time and place."
The defendants' general demurrer was sustained and the action was dismissed, and the plaintiff excepts.
The gravamen of the plaintiff's action is that the defendants are liable to the plaintiff in fraud and deceit in that their agent contracted with the plaintiff to buy the pine trees from the plaintiff's land and to pay him therefor the sums of not less than $3 nor more than $37.60 for each tree cut and that the agent made the contract with the intention not to perform the contract as made but to have his principals pay the plaintiff the stumpage value at the tree site less 40% of the price, the expense of hauling, plus the fact that the defendants incorrectly measured the trees to the plaintiff's disadvantage after they were received. The petition is vulnerable as an action for fraud and deceit in several particulars. First, it does not allege actual moral fraud, which is necessary in such an action ( Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 144 S.E. 400; Eastern Motor Co. v. Lavender, 69 Ga. App. 48 (2), 24 S.E.2d 840; Camp Realty Co. v. Jennings, 77 Ga. App. 149, 151, 47 S.E.2d 917), since it does not allege that the defendants knew of the kind of agreement the agent allegedly made with the plaintiff and knew that the agent made the agreement with the intention that it not be performed as made and that the defendants with knowledge of such facts ratified the agent's acts. Second, the contract allegedly made was too uncertain and indefinite to be enforced because there was no criterion or basis by which the value of any tree could be reasonably measured or valued nor was any custom pleaded which would aid the indefinite agreement allegedly made. There was no fraud alleged by which the plaintiff was induced to make an indefinite and unenforceable agreement. Since the plaintiff freely and voluntarily entered into an unenforceable agreement, his only recourse was an action on an implied contract for the provable value of his trees, either by action in assumpsit or possibly for an accounting. The breach of a contract to be performed in the future does not amount to fraud, unless the party guilty of the breach intended at the time of making the contract not to perform. McClellan v. Lipsey, 169 Ga. 184 (1) ( 150 S.E. 91); Brinson v. Hester, 185 Ga. 761, 762 (1) ( 196 S.E. 412); General Cas. Co. v. Miller, 206 Fed. 2d 196 (2); 23 Am. Jur. 885-888, § 106. This principle generally applies only to valid and enforceable express contracts and in order for it to be applicable under the facts of this case it would have to appear that the alleged guilty party knew that the contract was unenforceable and intended to breach the implied contract at the time the purported express contract was made. Third, the allegations of fraudulent intent to pay the plaintiff 40% less than the value at the tree sites is based solely on the allegation that the defendants paid other vendors the same price which would not bind the defendants to owe the same obligation to the plaintiff. Fourth, there is no way it can be ascertained from the allegations in the petition that the plaintiff was not paid or offered the market value of his trees at their sites. All that the allegations show is that the defendants offered less than $3 for some trees and too little for others. There was no allegation that the defendants made the agreement with the intention of cutting trees worth less than $3. So the allegation as to the defendants' offering less than $3 for some trees at most could only charge a breach of an agreement not to cut trees worth less than $3. As to the improper measurements of the trees, there is no allegation that the agreement was made with the intention at the time to measure them incorrectly. So the allegations with reference to improper measurements show no more than a breach of the purported agreement.
The court did not err in sustaining the general demurrer to the action and in dismissing it.
Judgment affirmed. Quillian and Nichols, JJ., concur.