T. V. Woodall wished to establish a cemetery in the Atlanta area and contacted Lanier Plunkett, d/b/a Plunkett Commercial Properties, for assistance in assembling real property for the venture. Larry Oldknow was a real estate agent employed by Plunkett. As a result of an arrangement to acquire properties for Woodall through the Plunkett brokerage firm, two sales contracts were executed for the purchase of realty of M. Lester Aveiy and M. L. A. Corporation. These contracts were on standard real estate sales forms and recited that the purchase price was "to be paid as follows: cash at closing.” The sales were never closed because Avery and M. L. A. Corporation, the sellers, were advised that Woodall did not have the financial ability to purchase unless he could obtain financing.
Avery and M. L. A. Corporation, of which Avery was president, sued Woodall, Plunkett, and Oldknow in three counts. Counts 1 and 2 sought relief against Woodall only, and Count 3, which alleged a conspiracy to defraud, sought damages from all three defendants. Plunkett and Oldknow moved for summary judgment, which was denied, and they now appeal to this court with a certificate for immediate review. Held:
*205Submitted October 2, 1974 Decided February 12, 1975 Rehearing denied March 7, 1975.We must reverse. It is well settled that where civil liability is sought to be imposed for a conspiracy, the conspiracy of itself furnishes no cause of action and the gist of the action, if one exists, is not the conspiracy alleged but the tort committed against plaintiff and the resulting damage. Many of the cases so holding are collected in 5A Georgia Digest, Conspiracy, key No. 6.
The purported tort here is fraud. In attempting to plead fraud, the petition alleges only: "That at all times relevant, the defendant Woodall and the defendant Oldknow and, thus, the defendant Plunkett as the employer and master of defendant Oldknow, did conspire to defraud your plaintiffs in that they prepared and allowed the plaintiffs to enter into the subject contracts knowing full well that defendant Woodall had no means, desire or intent to purchase the subject properties and knowing full well that the plaintiffs, in good faith, relied on the contracts and misrepresentations to their detriment and damage.” (Emphasis supplied.)
No false representation on the part of Oldknow and Plunkett is alleged, even in conclusory form, and the record is clear that they did not represent that Woodall had the cash to close the contracts. All the petition alleges is that they prepared the contracts and allowed the plaintiffs to enter into them. However, the record shows that prior to a zoning hearing, Avery produced a contract form from his pocket, demanded that it be entered into at that time, and dictated its terms. Avery himself refused to permit the insertion of a "subject to financing” clause and demanded a "clean contract, no contingencies.”
Thus not only does the petition fail to allege any false representation, which the record shows was never made by appellants here, but the record affirmatively disproves the allegations that are made. Consequently the judgment must be reversed.
Judgment reversed.
Bell, C. J., Pannell, P. J., Quillian, Clark and Marshall, JJ., concur. Deen, P. J., Evans and Stolz, JJ., dissent. *206Wall, Campbell & Fuller, Hilton M. Fuller, Jr., for appellants. Dewberry & Avery, C. Richard Avery, for appellees.