93 Ga. 762 | Ga. | 1894
This' was an action of trover for a horse. It appears from the record that the plaintiff swapped his horse for the defendant’s mare, but on the next day tendered back the mare and asked a rescission of the trade, claiming that the defendant cheated and defrauded him by false representations as to the character and qualities of the mare. The defendant refused to take back the mare or return the horse, and this action was brought. The defendant claimed that he had made no representations as to the mare, but that the plaintiff traded for her on his own responsibility. The court charged the jury, that, “if the defendant traded the plaintiff a mare in exchange for a horse, the defendant, even if he said nothing, nevertheless warranted the mare to be reasonably suited to the uses for which horses are generally intended.” This ivas excepted to by the defendant and made one of the grounds of his motion for a new trial.
We think this charge was error. This was not an action for a breach of warranty, but to recover the horse or its value, upon the ground that the title had not passed. To prevent title from passing, there must be actual fraud. Mere constructive fraud or breach of warranty does not prevent title from passing. Where two persons exchange horses and an actual fraud is committed on one by the other, the right of rescission may exist on the part of the one defrauded, but this right does not arise from constructive fraud or on account of a, breach of warranty express or implied, unless the right to rescind is expressly reserved in the contract. Where, however, there is an actual fraud perpetrated
Judgment reversed.