
    33684.
    McBURNEY v. WOODWARD.
    Decided October 4, 1951.
    Rehearing denied November 9, 1951.
    
      
      Randall Evans Jr., for plaintiff.
    
      Wilmer D. Lanier, for defendant.
   “If a special demurrer is urged to a petition, or other pleading, already of file, attacking only certain parts of it, and is sustained, the result is to eliminate the parts so held bad.” White v. Little, 139 Ga. 522 (3) (77 S. E. 646). Where the special demurrer goes only to some particular part of the petition, without which a valid cause of action would still be set forth, the result of sustaining the special demurrer would be to strike the defective portion of the petition, not to dismiss the action. And where a special demurrer to a petition is sustained with leave to amend, and there is a failure or refusal to amend, the petition should be dismissed, if the defect or delinquency relates to the entire cause of action. Cheatham v. Palmer, 191 Ga. 617 (5) (13 S. E. 2d, 674); McSwain v. Edge, 6 Ga. App. 9, 11 (64 S. E. 116); Farmers Mutual Fire Ins. Co. v. Pollock, 52 Ga. App. 603 (1) (184 S. E. 383); Elliott v. Orange Crush Bottling Co., 56 Ga. App. 313, 315 (192 S. E. 530).

The order of the court sustaining the special demurrer to sub-paragraph 3 of paragraph 9 of the petition did not authorize or require that said paragraph be amended, nor did it impose a condition of dismissal of the petition, if the plaintiff failed to amend said paragraph. The result of the order sustaining the demurrer to that paragraph was to strike that paragraph from the petition. This subparagraph did not relate to the entire cause of action, and the striking of the same did not destroy the entire cause of action. This subparagraph sought to recover $2232.25 paid by the plaintiff as the balance of the purchase-price of the Buick automobile. Subparagraphs 1 and 2 of said paragraph 9 sought to recover, respectively, $400, the cash payment on the Buick, and $850, the value of the Chevrolet traded in on the Buick. Only one item of the damages sued for was contained in said stricken paragraph. This left the cause of action standing as to the other two items of damages sued for in subparagraphs 1 and 2 of paragraph 9 of the petition.

“Wilful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right of action." Code, § 105-302. Fraud may exist from misrepresentation by either party, made with design to deceive, or which does actually deceive the other party, and in the latter case renders the sale voidable at the election of the party injured. Code, § 96-202. Also, see Code §§ 20-502 and 20-906, as to fraud rendering contracts voidable. The essential elements of an action for fraud and deceit, as stated in Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (3) (16 S. E. 2d, 176), are: “(1) That the defendant made the representations; (2) that at the time he knew they were false (or what the law regards as the equivalent of knowledge); (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on such representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.”

Where the petition set out a cause of action, irrespective of the ruling on the special demurrer to subparagraph 3 of paragraph 9 thereof, it was error for the trial judge to dismiss the petition on the ground that the plaintiff failed or refused to amend subparagraph 3 of paragraph 9 thereof, which had previously been stricken on special demurrer. And especially is this true where the order sustaining the special demurrer to said subparagraph did not authorize or require that such paragraph be amended or impose a penalty of dismissal of the petition for failure to amend said paragraph.

Error is assigned on the order sustaining the special demurrer to subparagraph 3 of paragraph 9 of the petition. Said subparagraph and the demurrer thereto are set out above. It is alleged in this paragraph that the plaintiff had been damaged by the loss of $2232.25, paid by him as the balance of the purchase-price of the automobile, said amount having been paid to a named person as the attorney for the General Finance & Thrift Corporation, which corporation had financed the automobile for the defendant; that said finance corporation was represented by this named attorney, who also represented the defendant, Woodward, and who had knowledge of the financing of said automobile by said finance corporation; that the defen-, dant, Woodward, had been paid approximately $2500 for said financing deal by said finance corporation; that said finance corporation, through said named attorney, had sued out an attachment against the plaintiff and his said automobile which was seized under said process; and that the plaintiff paid the amount named above as the balance of the purchase-price because his property had been seized as thus stated.

’ The plaintiff in this subparagraph was suing for a loss which he alleged hg sustained on account of the fraud and deceit practiced upon him by the defendant, the same being the balance of the purchase-price of the automobile. He alleged that he paid this balance and set it out as one item of his damages. We think the allegations of this paragraph of the petition are sufficient and specific enough with respect to this item of loss which the plaintiff alleged he sustained because of the fraud and deceit of the defendant, and that the court erred in sustaining the special demurrer thereto.

Judgment reversed.

Felton and Worrill, JJ., concur.  