For the reasons stated in the opinion, the judgments in these cases must be reversed.
T. Q. Fleming brought suit against Arthur True, T. N. Beach and W. B. Leedy & Company, Inc., alleging in substance: That the plaintiff had discovered that a large and very desirable tract of land located on St. Simons Island, Georgia, and known as the St. Clair Tract could be purchased; that said tract was owned by several named parties, and plaintiff realized that it was a very desirable tract of land and was interested in purchasing it; that the plaintiff had known the tract of land for many, many years, and about February, 1955, he went over to St. Simons Island and contacted the defendant True, and advised him that he understood the land could be purchased, and the two of them together went to look over the land. The defendant True was interested in purchasing the property jointly with the plaintiff and represented to him that he would secure financing to enable them to purchase the property. For the reason that, a number of years previously, the plaintiff had difficulty with one of the owners, to wit, Millard Reese, it was suggested by the plaintiff that the defendant True undertake to negotiate the purchase of the property, and they were to put up jointly the money necessary for the down payment and to close the transaction, and the defendant True was to secure a loan covering the balance. The said True approached the owners of the property and secured a written option upon the payment of $5,000, all of which was paid by the plaintiff. The said option contained a provision that, upon the payment of an additional $5,000 within 90 days, it was automatically converted to a 60-day sales contract at and for the total purchase price of $150,000. It is alleged that the plaintiff advanced and paid the second $5,000, which was all of the money paid by either of the parties prior to the closing of the transaction; and that, after working on this deal from February, 1955, the same took definite shape on or about November 18, 1955, at which time the aforementioned option was secured.
During all of the months from February until November and from November until the following April, when the deal was closed, the plaintiff was constantly advising with said defendant True in regard to the transaction. It is further alleged that it was understood between them that they were to equally advance the money necessary to close this transaction with True securing a loan upon the property for the balance of the purchase price; and that they were to own the property jointly; that said True called upon said defendant Beach, and then advised the plaintiff that Beach had agreed to advance the money necessary to close out the transaction and pay off all parties demanding cash.
The petition also alleges that the plaintiff would have been able to have secured financing of this property had he not relied upon the representations of the defendant True. The petition then alleges that the defendant True and the defendant Beach and defendant W. B. Leedy & Company, Inc., "conspired and connived to defraud your petitioner out of this property and/or his interest therein by taking title to said property for themselves to the exclusion of petitioner and that on April 25th, 1956, the defendant True took a deed from the sellers in his own name, the sales contract having been extended to this date by the sellers, and that forthwith and on the same day defendant True deeded this property in its entirety to defendant Beach, and six days later, on May 1st, 1956, the defendant Beach deeded the property to defendant W. B. Leedy & Company, Inc., and the defendant Beach was acting as agent for W. B. Leedy & Company, Inc.," in this transaction. It is further alleged that, on the day following the taking of the deed by the defendant True to wit, April 25, 1956, the defendant True returned to the plaintiff the $10,000 which the plaintiff had paid upon this property, representing all of the money that had been paid upon the property in securing the options and the sales contract, which amount was to have been applied to the purchase price when the transaction was closed.
The petition contained two counts, the facts alleged in each being the same. The prayer in count one was for damages, and the prayer in count two sought to impress a trust upon the property involved. General and special demurrers were filed by all defendants. The trial judge overruled all the demurrers to the petition. In case No. 20117, Arthur True excepts to this judgment. In case No. 20116, T. N. Beach and W. B. Leedy & Company, Inc., except to the same judgment.
"Fraud can not be predicated upon statements which are promissory in their nature as to future acts." Jackson v. Brown, 209 Ga. 78
(70 S. E. 2d 756). "Representations which authorize an action for fraud and deceit must be made with reference to existing or past facts and not to future acts." Monroe v. Goldberg, 80 Ga. App., 770, 775 (57 S. E. 2d 448). "Ordinarily, promises to perform some act in the future will not amount to fraud in legal acceptation, although subsequently broken without excuse." Rogers v. Sinclair Refining Co., 49 Ga. App. 72
, 74 (174 S. E. 207). It follows, the allegations in the petition are not such as to authorize an action for fraud to be based upon them, and the judgments in both True v. Fleming (Case No. 20117) and Beach v. Fleming (Case No. 20116) must be
DUCKWORTH, Chief Justice, concurring specially. I concur in the judgments for the reason that the petitioner accepted a refund of his money which is tantamount to a voluntary rescission of all previous arrangements and agreements he had had, and he will not now be heard to complain of a violation thereof. I am authorized to state that Mr. Justice Hawkins joins me in this special concurrence.