144 Ga. 112 | Ga. | 1915
A contract for the sale of certain shares of corporate stock contained an agreement that the seller would sell the stock for the purchaser within twelve months after the date of the contract (which was July 8, 1912), at $100 per share, and a further agreement to pay the expenses of a trip by the purchaser to a named city, and that if then the purchaser was not satisfied, the seller would return certain notes which had been given for the purchase-price, and the buyer would re-transfer the stock to the seller; the trip to be made before a certain
(a) The provisions of the contract of sale, for rescission on the one hand in case of dissatisfaction, and for the sale of the stock within twelve months at a specified price on the other, were alternative in character. The original suit was brought before the twelve months had elapsed, and could not be predicated upon a breach of the contract in regard to selling the stock; and the amendment, in so far as it set up a breach of the agreement to sell and sought to recover damages on account thereof arising after suit was brought, was subject to demurrer.
(I>) Inasmuch as the allowance of the amendment in the respect above mentioned and the overruling of the demurrer to such allegations caused the suit to be one which included an effort to rescind the purchase, under the terms of the written agreement, because of dissatisfaction, and to rescind also because of fraud, and an effort to enforce the contract of purchase and obtain damages for a failure on the part of the defendant to make a resale of the stock after the bringing of the original suit, the error was so material as to infect the entix’e trial and render what took place upon the trial nugatoi-y. It is accordingly unnecessary to deal with specific rulings made pending the trial, or to determine whether the plaintiff should have been required to elect, on mo
Judgment reversed.