dissenting.
Plaintiff Goldman brought suit against The Ethel Lilley Company and George and Willa Hart seeking to recover damages for defendant’s fraud and deceit in the sale of George Hart’s house to Goldman. The complaint alleged, inter alia, that Willa Hart acted as attorney in fact for her husband George in the sale of the house; that Lilley Company acted as real estate broker; that on various visits to the house during the negotiation stage Mrs. Hart and Mrs. Duckworth, the broker’s agent, "represented to the plaintiff specifically that there were no problems with the roof of the house”; that after the sale it was discovered that the roof leaked in several places; that prior to their misrepresentations to the plaintiff the Harts had been advised by a roofing company that they needed to completely replace the roof; that Mrs. Duckworth, the broker’s agent, was an experienced real estate agent who held a mortgage on the house and had reason, opportunity and duty to have acquainted herself *427with the condition of the house she was selling; that even if Mrs. Duckworth may not have actually known that her representations were false, they were made with a reckless disregard for the facts with intent to deceive; that the representations were believed and acted upon by plaintiff.
The trial court granted the broker’s motion to dismiss the complaint as to it for failure to state a claim upon which relief could be granted, and plaintiff appeals. The majority affirms, and I respectfully dissent from that ruling.
1. "In all averments of fraud, . . . the circumstance constituting fraud . .. shall be stated with particularity.” CPA§ 9(b) (Code Ann. § 81A-109(b)). "The requirement of particularity does not abrogate Rule 8, and it should be harmonized with the general directives in subdivisions (a) and (e) of Rule 8 that the pleadings should contain a 'short and plain statement of the claim or defense’ and that each averment should be 'simple, concise and direct.’ Rule 9(b) does not require nor make legitimate the pleading of detailed evidentiary matter.” 2A Moore’s Federal Practice 1929-30, § 9.03. Where fraud is pleaded as contemplated by CPA sections 8 and 9, the general rules as to construction of pleadings apply, including the rules that the pleading will not be construed against the pleader but will be construed so as to do substantial justice, and that a motion to dismiss a complaint for failure to state a claim should not be granted unless the averments in the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Neville v. Buckeye Cellulose Corp., 118 Ga. App. 439 (164 SE2d 257); Elsner v. Cathcart Cartage Co., 124 Ga. App. 615 (184 SE2d 685); Continental Investment Corp. v. Cherry, 124 Ga. App. 863, 865 (2)(186 SE2d 301); Vickery v. General Finance Corp., 126 Ga. App. 403, 404 (2) (190 SE2d 833); Robinson v. A. Construction Co., 130 Ga. App. 56, 57 (2) (202 SE2d 248). Accord, Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13). While the statement made in Mewall Properties & Loan Corp. v. Cutten, 233 Ga. 291, 294, that "averments of fraud need not be made with specificity or particularity under the Civil Practice Act” is *428supportive of this dissent, I nevertheless regard the statement as dictum since fraud was there alleged with particularity, and in any event it is not an altogether accurate statement of the holding in Cochran, supra, which is cited as authority for the statement.
2. Appellee broker contends here "that the plaintiff has alleged himself out of court insofar as the appellee-defendant is concerned, and that the trial court did not err in granting the appellee’s motion to dismiss.” It is urged that paragraphs 5 and 6 of the complaint affirmatively show that the plaintiff did not rely to his detriment upon the truth of any representation made by Mrs. Duckworth, since it is alleged that Mrs. Duckworth stated on one occasion, prior to closing, that her representations were based upon information supplied by the Harts.
This contention misses the mark because the rights of the parties to the sales contract were fixed not at the time of closing, but at the time of the execution of the sales contract. Paragraph 6 of the complaint relates to conversations about the roof on the day of closing, and paragraph 5 alleges that Mrs. Duckworth "stated on one occasion following the signing of a purchase contract on June 10,1973, that any answers she gave concerning the condition of the house were based on information given to her by Mr. and Mrs. Hart.” (Emphasis supplied.) Thus the complaint does not affirmatively show that plaintiff was not relying upon Mrs. Duckworth’s representations as being her own prior to execution of the sales contract, which is the date plaintiff acted upon the representations to his detriment..
I am unable to follow the distinction drawn by the majority between the "preliminary contract” and closing "contract,” and I know of no authority to support the premise that á party to a real estate sales contract is not bound by that, contract until it is finally executed. If that premise be correct, then countlésg cases involving specific performance of such executory sales contracts, and damages for their breach, yill Hayé to be stricken from the books. The "closing” is nothing more than the execution of the sales contract; and since, according to the complaint, plaintiff apted upon the misrepresentation in executing *429the sales contract, it cannot be said as a matter of law on motion to dismiss that he did not rely upon such misrepresentation to his detriment. He had changed his legal position by executing the sales contract, and regardless of what knowledge he may have gained thereafter he would at least have exposed himself to the hazard of a lawsuit had he refused to close the contract. In my view he was perfectly entitled to protect himself from that hazard, close the contract, and then sue for the fraud which placed him in that position.
I cannot help but conclude that the disposition of this case by the majority smacks of the old demurrer practice. The only issue here is whether the complaint is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted, and it is my conclusion that, under the rules of pleading set out above, the complaint is sufficient.
I would therefore reverse the judgment of the trial court dismissing the complaint for failure to state a claim.
I am authorized to state that Chief Judge Bell and Judges Quillian and Stolz, concur in this dissent.