Miles, 656 F.2d 103 (5th Cir. 1981). 51-6-1 Award precluded by notice of appeal. — Award of damages under O.C.G.A. § 51-6-1 required reversal because a timely notice of appeal was filed which divested the trial court of jurisdiction to make such an award. Hall v. Hidy, 263 Ga. 422, 435 S.E.2d 215 (1993). Cited in Christian v. Penn, 7 Ga. 434 (1849); Terhune v. Dever, 36 Ga. 648 (1867); Cochran v. Jones, 85 Ga. 678, 11 S.E. 811 (1890); Burpee v. Holmes, 132 Ga. 464, 64 S.E. 486 (1909); Gafford v. Twitty, 154 Ga. 682, 115 S.E. 105 (1922); Hoffman v. Lynch, 23 F.2d 518 (N.D. Ga. 1928); Keiley v. Citizens’ Sav. Bank & Trust Co., 173 Ga. 11, 159 S.E. 527 (1931); Equitable Bldg. & Loan Ass’n v. Brady, 175 Ga. 43, 164 S.E. 674 (1932); Simmons v. May, 53 Ga. App. 454, 186 S.E. 441 (1936); Sikes v. Foster, 74 Ga. App. 350, 39 S.E.2d 585 (1946); Jackson v. Smith, 92 Ga. App. 677, 89 S.E.2d 526 (1955); Allstadt v. Johnson, 97 Ga. App. 584, 103 S.E.2d 683 (1958); Mooney v. Tallant, 397 F. Supp. 680 (N.D. Ga. 1975); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir. 1979); Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981); Everson v. Franklin Disct. Co., 248 Ga. 811, 285 S.E.2d 530 (1982); McGaha v. Kwon, 161 Ga. App. 216, 288 S.E.2d 289 (1982); Crosby v. Wenzoski, 164 Ga. App. 266, 296 S.E.2d 162 (1982); Big Ben Agri-Services, Inc. v. Bank of Meigs, 174 Ga. App. 493, 330 S.E.2d 422 (1985); Southern Disct. Co. v. Kirkland, 181 Ga. App. 263, 351 S.E.2d 685 (1986); Reynolds v. Flint River Technical Inst., 223 Ga. App. 240, 477 S.E.2d 393 (1996); Chandler v. MVM Constr., Inc., 232 Ga. App. 385, 501 S.E.2d 533 (1998). Application to Specific Cases Actionable fraud for purposes of lex loci delicti. — Because only fraud which results in damage is actionable, the ‘‘last event’’ necessary to make an actor liable for fraud is the injury, and consequently, for purposes of lex loci delicti, the place of the wrong is where that injury is sustained. IBM v. Kemp, 244 Ga. App. 638, 536 S.E.2d 303 (2000). Breach of creditor’s agreement to extend payments does not give rise to action for fraud. — Although creditor 619 Application to Specific Cases (Cont’d) may have made an agreement, without consideration, to extend the debtor’s time of payment, a failure to comply therewith did not give rise to cause of action for breach of contract, neither did it, under the allegations of the petition, make out a cause of action for fraud and deceit. Tallent v. Scarratt, 51 Ga. App. 577, 181 S.E. 141 (1935). Cutting off equities of note maker creates liability. — The wrongful transfer of a negotiable note to a bona fide purchaser, thereby cutting off the maker’s valid defense, gives rise to a cause of action under this section for the damages resulting therefrom. Jones v. Crawford, 107 Ga. 318, 33 S.E. 51, 45 L.R.A. 95 (1899); Detwiler v. Bainbridge Grocery Co., 119 Ga. 981, 47 S.E. 553 (1904). Damage from fraudulent sale recouped. — A vendee, in an action by the vendor for the purchase price of land, may recoup actual damages resulting from a misrepresentation of the vendor of the boundaries of the land. James v. Elliott, 44 Ga. 237 (1871). Effect of plaintiff ’s contributory negligence. — When a prospective purchaser of a quantity of goods represented to the owner of the goods who was offering the goods for sale that one could not afford to pay the market value because there was a processing tax imposed by the United States government on the goods and the seller, relying on the purchaser’s representation as to the existence of a processing tax, sold the goods to the purchaser at the value of the tax less, per ton, but the pretended processing tax imposed was in fact void, the purchaser having instituted legal proceedings in court for the purpose of enjoining its collection, and having obtained an injunction enjoining same, the purchaser’s misrepresentation of the purchaser’s liability for the payment of the processing tax was as to a matter equally open to the observation of the seller and, therefore, constituted no fraud affording ground for a cause of action for deceit. Salter v. Brown, 56 Ga. App. 792, 193 S.E. 903 (1937). Evidence failed to establish fraud and deceit alleged as the evidence 51-6-1 amounted only to promise to pay money in future. Bullard v. Western Waterproofing Co., 63 Ga. App. 547, 11 S.E.2d 713 (1940). Misrepresentation to assignor of salary that such is owed by employer. — One who receives a purported assignment of salary to secure an antecedent debt is not damaged merely by false and fraudulent representations by the assignor to the effect that one’s employer is indebted to one for such salary. Hinton v. Mack Purchasing Co., 41 Ga. App. 823, 155 S.E. 78 (1930). Summary judgment for a corporation was proper in fraud action. — Trial court properly granted summary judgment to a corporation on a limited liability company’s fraud claim as: (1) the contract contained an integration clause and other representations could not be used to vary the contract; (2) the contract was more specific than the Georgia Limited Liability Partnership Act, specifically O.C.G.A. § 14-11-305(1), and the contract prevailed; (3) the contract provided that any member could engage in conflict of interest transactions, that the corporation could compete directly with the joint venture, and that the corporation had complete control of the joint venture’s business; and (4) the corporation held 51 percent of the membership and could consent to a change in the joint venture’s purpose or scope. Alimenta (USA), Inc. v. Oil Seed South, LLC, 276 Ga. App. 62, 622 S.E.2d 363 (2005). Misrepresentation of bank’s solvency. — Petition serving a recovery by the plaintiffs as depositors against individuals who were officers and directors of the bank, because of the publication of false statements and personal misrepresentations in regard to the bank’s solvency, which did not show actual fraud on the part of the defendants, failed to state a cause of action against them for fraud and deceit. Green v. Perryman, 186 Ga. 239, 197 S.E. 880 (1938). Bank’s payment of company’s checks when account funds insufficient. — When a car auction contended that a bank’s practice of paying a car company’s checks when the account had insufficient funds constituted fraud because such payment misled the car auc- 620 tion as to the company’s credit worthiness but the evidence showed that the auction relied upon past credit history in extending credit and that it had no knowledge that the bank paid checks when the account had insufficient funds until some checks were dishonored, the bank did not act fraudulently because there was no misrepresentations, no reliance, and no intent to deceive. Georgia Cas. & Sur. Co. v. Tennille Banking Co. (In re Smith), 51 Bankr. 904 (Bankr. M.D. Ga. 1985). Misrepresentation by contractor as to work required. — Petition by subcontractor for damages due to increased costs of work performed by virtue of misrepresentations by contractor as to nature of work required was an action for fraud and deceit. Rich’s, Inc. v. Kirwan Bros., 97 Ga. App. 58, 102 S.E.2d 648 (1958). Misrepresentation by director to person purchasing stock concerning financial condition of corporation is actionable. Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934). Misrepresentation on financial statement in connection with loan. — In suit against the defendants, for a tort consisting of fraudulent representations made by them in their financial statements, whereby the borrower obtained money from the plaintiff, the plaintiff could waive the right to sue on the note and the contract of guaranty and bring an action for damages on account of alleged fraud and deceit by the defendant, whereby the lender advanced the money to its subsequent injury. Allen v. Hartsfield Co., 52 Ga. App. 549, 183 S.E. 821 (1936). Misrepresentation of property values. — As against attack by general demurrer (now motion to dismiss), allegations of fraud and deceit which showed that the defendant deliberately concealed facts within the defendant’s knowledge affecting value, as an inducement to sell, which facts the plaintiff sought to discover, are sufficient to support a cause of action. Blanchard v. West, 115 Ga. App. 814, 156 S.E.2d 164 (1967). Misrepresentation of quality of goods. — Evidence that within two weeks of purchase of used 1975 Oldsmobile from dealer (contract containing an express dis- 51-6-1 claimer of all warranties), the engine of the automobile burned up and had to be replaced was sufficient evidence to support verdict for fraud and deceit, with actual and punitive damages. Bob Maddox Dodge, Inc. v. McKie, 155 Ga. App. 263, 270 S.E.2d 690 (1980). When the purchaser of personal property has been injured by the false and fraudulent representations of the seller as to the subject matter thereof, the purchaser ordinarily has an election whether to rescind the contract, return the article, and sue in tort for fraud and deceit, or whether to affirm the contract, retain the article, and seek damages resulting from the fraudulent misrepresentation. Bob Maddox Dodge, Inc. v. McKie, 155 Ga. App. 263, 270 S.E.2d 690 (1980). No cause of action for fraud exists in one who buys or accepts security in land while failing to exercise any diligence for one’s protection, and asserts that one blindly relied on the representations of the seller as to matters of which one could have informed oneself. Third World, Ltd. No. II v. Brewmasters of Augusta, Inc., 155 Ga. App. 352, 270 S.E.2d 891 (1980). No cause of action for fraud by subscription contest loser when winner used fraudulent means. — When two contestants in a contest for soliciting subscriptions to a newspaper, submitted to the newspaper putting on the contest their claims for a prize to be awarded under the rules of the contest, and the judges determined the contest according to the rules by awarding the prize to the contestant who obtained the largest number of votes for obtaining subscriptions to the newspaper, the losing party had no remedy by suit at law against the winning party to whom the prize had been awarded, for any redress arising out of any fraud perpetrated by the winning party in the procurement of the subscriptions whereby the judges of the contest were induced to award the prize erroneously. Harrison v. Jones, 52 Ga. App. 852, 184 S.E. 889 (1936). Representation that land title is unencumbered. — After the owner of land represented to the purchaser that there was no encumbrance against the premises 621 Application to Specific Cases (Cont’d) sold, thereby inducing the purchaser to purchase the land, and the land was found later to be encumbered, this constituted a fraudulent representation for which relief will be given the purchaser. Oliver v. O’Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934). In a suit by the seller for the purchase money of land, the defendant purchaser is entitled to plead that the defendant was not put in possession of the premises and that the seller was guilty of false and fraudulent representations as to the existence of liens on the premises and, upon proof of such facts, a verdict in the defendant’s favor is authorized. Oliver v. O’Kelley, 48 Ga. App. 762, 173 S.E. 232 (1934). Representation that title to goods is unencumbered. — When it is shown that goods were furnished upon the false representation that property was free from any lien or encumbrance, and this was known to be so by the accused when the accused made it, it was not necessary to prove how, or to what extent, the furnishers of the goods were damaged thereby. The encumbrance upon the property was in itself proof of damage. Bolton v. State, 43 Ga. App. 759, 159 S.E. 910 (1931). Statement of one who has purchased an option, to the seller, that one intends to exercise the option, will give rise to cause of action if the statement is false and fraudulent, is material, and is acted upon by the recipient to the recipient’s injury. Floyd v. Morgan, 62 Ga. App. 711, 9 S.E.2d 717 (1940). Stock subscription induced by fraud. — As between a stockholder and the corporation, unless special circumstances alter the case, the general rule that contracts obtained by fraud may be avoided by the party defrauded applies to a stock subscription induced by the fraud of the company through the company’s authorized agents, and so likewise when only the rights of other shareholders are affected, the company being solvent and a going concern. Daniel v. Dalton News Co., 48 Ga. App. 772, 173 S.E. 727 (1934). Stock sale induced by fraud. — When a purchaser seeks damages against 51-6-1 a party other than the seller of the security the sale of which gave rise to a federal securities claim, the Georgia statute most resembling a Rule 10b-5 cause of action is the Georgia general fraud statute as found in O.C.G.A. § 51-6-1. In re N. Am. Acceptance Corp. Sec. Cases, 513 F. Supp. 608 (N.D. Ga. 1981). When contract is rescinded and action is brought for fraud, disclaimer of warranty is no longer binding. Bob Maddox Dodge, Inc. v. McKie, 155 Ga. App. 263, 270 S.E.2d 690 (1980). Physician’s duty to disclose risks. — Physician was not under an affirmative obligation, either under statute or common law, to disclose the physician’s drug use to the physician’s patients prior to rendering services, and the physician’s failure to make such disclosure could not be the basis for an independent cause of action against the physician. Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 528 S.E.2d 777 (2000), reversing Cleveland v. Albany Urology Clinic, P.C., 235 Ga. App. 838, 509 S.E.2d 664 (1998). Holder claims permitted. — In response to a certified question asking whether Georgia common law recognized fraud claims based on forbearance in the sale of publicly traded securities, the Supreme Court answered that Georgia law permitted holder claims, and the limitations imposed in other jurisdictions were appropriate. Negligent misrepresentation claims, like fraud claims, can be based on forbearance in the sale of publicly traded securities, and the direct communication and specific reliance limitations on fraud claims by ‘‘holders’’ also apply to negligent misrepresentation claims. Holmes v. Grubman, 286 Ga. 636, 691 S.E.2d 196 (2010). Intentionally false statements from attorney. — While a client’s complaint contained a count for fraud, the client failed to allege any specific facts to state a cause of action for fraud pursuant to O.C.G.A. §§ 9-11-9, 51-6-1, and 51-6-2(b) because the complaint failed to allege any specific facts indicating that a former attorney intentionally made false statements to the client during the course of the representation of the client. Fortson v. Freeman, 313 Ga. App. 326, 721 S.E.2d 607 (2011). 622 Whether failure to disclose was breach of fiduciary duty. — In a dispute between a manager and a member of an LLC over the member’s alleged failure to disclose a contractor’s financial problems and failure to supervise the contrac- 51-6-1 tor in the contractor’s site work, issues of fact remained regarding whether the member had a fiduciary duty to inform the manager of the problems. Inland Atl. Old Nat’l Phase I, LLC v. 6425 Old Nat’l, LLC, 329 Ga. App. 671, 766 S.E.2d 86 (2014).