1. An order sustaining a general demurrer to a petition and allowing time for amendment is not a final order subject to review.
2. Inconsistent and contradictory averments that plaintiff was damaged as a result of the "tieing up" of land by an invalid contract for sale of the land, state no right of recovery for fraud.
3. One charged with knowledge of the legal effect of unenforceable promises has no right to rely upon them or to recover for fraud in their utterance.
E. L. Adamson, Jr. brought this action, which sounds in tort for fraud and deceit, to recover damages against Frank Maddox as defendant. To plaintiff's petition defendant filed general and special demurrers. After a hearing on the demurrers the trial judge issued an order sustaining the general demurrer and granting plaintiff leave to amend within thirty days. Plaintiff amended his petition within the allotted time, and afterwards defendant renewed his demurrers to the amendment. After a further hearing the trial judge sustained defendant's renewed. general demurrer.
Plaintiff excepts to the judgments of the trial court sustaining the general demurrer to the original petition and the renewed general demurrer to the petition as amended.
The amended petition shows the following facts: Plaintiff is a licensed real estate broker. Prior to March 26, 1963, he represented the owner of certain property as agent for sale of the property, and contacted defendant as a prospective buyer. De- fendant stated that he was interested in buying the property and requested plaintiff to prepare a contract for sale of the property. After the contract was prepared, defendant refused to execute it. Defendant himself then prepared a different contract "as a fraudulent scheme against this plaintiff." The writing prepared by defendant, attached to the petition as an exhibit, shows that it was executed by the defendant and that on April 3, 1963, it was signed "Robert H. Jones (Seller) By /s/ E. L. Adamson, Jr. (Broker)." "The defendant herein purposely omitted the said proper description of the said lots, in an effort to tie up the property and prevent your petitioner and the seller from proceeding further with any other sale, and that as a result of the defendant's fraud perpetrated on him, as broker, did tie the said property up and prevent them from proceeding with any other sale, and . . . he did this with the intent of defrauding this plaintiff out of $13,000.00 [plaintiff's commission] . . . Petitioner shows that the purchaser refused to complete said transaction, for no valid reason, and has failed and refused to pay the commission in accordance with the terms of the said contract." Defendant "refused to permit this plaintiff to show or sell the lots for a period of ten months, except that he instructed this plaintiff to sell all of the said lots which the defendant had tied up, for the sum of $200,000.00." Defendant "prevented any of the lots to be sold . . . refused to give a quit-claim deed, stating that he was going to close the transaction . . . perpetrated a fraud on this plaintiff . . . in that he did not have any intention of going through with the deal at any time, and . . . prepared his own contract for the specific purpose of knocking this plaintiff out of his commission from any other persons . . . Defendant herein did on six different occasions agree that he would go ahead and close the transaction . . . and when it would come time to close, the defendant would . . . refuse to close . . ."
1. As the plaintiff amended his petition to meet the order sustaining the general demurrer to the original petition and allowing him time within which to amend the petition, he thereby acquiesced in the order, and cannot now be heard to object to it. Sherling v. Continental Trust Co., 175 Ga. 672 (1) (165 SE 560); Stainback v. Dunn, 53 Ga. App. 464, 465 (3) (186 SE 220). The holdings of these cases have been reinstated by the amendment to Code Ann. 81-1001 found in Ga. L. 1962, p. 682. If plaintiff desired to stand upon the petition as filed, he should have refused to amend. This court will not consider plaintiff's assignment of error upon the trial court's order sustaining the demurrer to the original petition.
2. Plaintiff admits that the contract prepared by defendant was invalid because of the insufficient description of the land that was the subject matter of the contract. He even bases his action upon the premise, claiming that the property was "tied up" by an invalid contract for its sale and that he was thus deprived of the commission that he expected to receive for selling the property.
The contract is also invalid for another reason. The petition avers that plaintiff was agent for the owner of the land "prior to March 26, 1963," while the contract attached as an exhibit to the petition shows that it was executed by plaintiff on April 3, 1963. In the absence of any positive indication that plaintiff was authorized to execute the instrument for the owner on April 3, 1963, we cannot assume that plaintiff's authority as agent extended beyond the time alleged.
It requires no degree of perspicacity to comprehend that if the contract was unenforceable the property was not "tied up." All rights in the property were unaffected by the invalid agreement. Plaintiff cannot plead, in effect, that the property was unaffected and at the same time claim damages for an artifice affecting the property, for legally and logically his claim is a non sequitur.
3. There is no merit in plaintiff's contention that defendant committed fraud by promising several times "to go ahead and close the transaction," when defendant "did not have any intention of going through with the deal at any time." The general rule is that "Fraud cannot be predicated upon statements which are promissory in their nature as to future acts." Jackson v. Brown, 209 Ga. 78
, 80 (2) (70 SE2d 756
); Beach v. Fleming, 214 Ga. 303
, 306 (104 SE2d 427
); S. & S. Builders v. Equitable Investment Corp., 219 Ga. 557
, 564 (4) (134 SE2d 777
); Rogers v. Sinclair Refining Co., 49 Ga. App. 72
, 74 (174 SE 207
); Monroe v. Goldberg, 80 Ga. App. 770
, 775 (57 SE2d 448
). On the other hand, "When a promise is made with no intention of performance, and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense." Floyd v. Morgan, 62 Ga. App. 711
, 715 (5) (9 SE2d 717
); Johnston v. Dollar, 83 Ga. App. 219
, 223 (3) (63 SE2d 408
); Hill v. Stewart, 93 Ga. App. 792
, 796 (92 SE2d 829
). See Coral Gables Corp. v. Hamilton, 168 Ga. 182
, 194-199 (147 SE 494
). Cf. Thompson v. McLaughlin, 13 Ga. App. 334
, 337 (79 SE 182
We do not believe that the latter rule can be extended to in- clude those cases in which the promise upon which the promisor is charged with fraud is for any reason unenforceable at the time of its utterance. "Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence." Daugert v. Holland Furnace Co., 107 Ga. App. 566
, 569 (130 SE2d 763
) and citations. It is contrary to common sense to rely upon a promise that is not legally binding upon the person making it. "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz. . . . Any contract for sale of lands, or any interest in, or concerning them." Code 20-401 (4). This is merely the most obvious one of several reasons why the defendant's statements that he would complete the transaction were not binding upon defendant. It is elementary that plaintiff must be charged with knowledge of the law. Thus knowing defendant's promises to be unenforceable, plaintiff was not justified in relying upon them.
Judgment affirmed. Frankum and Hall, JJ., concur.