38 S.E.2d 48 | Ga. Ct. App. | 1946
Lead Opinion
1. "In an action to recover damages for personal injuries, it appearing that the parties had, before the action was brought, agreed upon a settlement under which plaintiff received a sum of money in satisfaction of his injuries, and in which he released all right of action for further damages, he could not successfully reply by showing that the agreement of release was obtained by defendant's fraud, without also showing that before commencing suit, he had tendered to the defendant the sum received with demand of return of what defendant had received from him, thus rescinding the settlement." East Tennessee c. Ry. Co. v. Hayes,
2. Where a plaintiff amends her original petition, admitting the execution of a release pleaded by the defendant as an accord and satisfaction, and seeks to avoid it on the ground of fraud, the court, in passing on a general demurrer, will consider the petition as amended, including the admission of the contract with the attack made on it.
The court sustained the demurrer to the petition as amended and dismissed the petition. The plaintiff excepted to that ruling. The only question for decision by this court is whether the lower court was correct in sustaining the demurrer and dismissing the petition.
1. We think that this case is controlled by the well-settled rule that generally a restoration or offer to restore must be made promptly upon discovery of the fraud, and before the suit is filed, by one seeking the rescission of a contract on the ground of fraud. *761
"A contract may be rescinded at the instance of the party defrauded; but in order to rescind, he must promptly, upon discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value." Code, § 20-906. "A contract will not be set aside on the ground of fraud in its procurement, at the instance of one who has neither restored nor offered to restore the fruits thereof." Petty v. Brunswick Western Ry. Co.,
The release acknowledging full settlement of the plaintiff's claim, and the draft given to the plaintiff as the consideration for it, were executed on June 17, 1945. The suit was filed on July 13, 1945, within less than 30 days after the release was signed. The amendment of the plaintiff tendering the $25 received by her for the release was filed on November 17, 1945, exactly five months after the money was received, and more than four months after *763 the filing of the suit. If there was any fraud in the procurement of the release, we think that it was necessarily discovered by the plaintiff before the filing of the suit, and it was incumbent upon her to restore or offer to restore to the defendant the consideration for the release promptly upon the discovery of the fraud. We think that the tender of the money by the plaintiff for the first time in her amendment, five months after it was received and about four months after the suit was filed, was too late to effect a rescission of the contract of release and avoided it in the pending action. Furthermore, there is ample authority, and some of the cases are cited herein, to the effect that a tender would have to be made before the commencement of the suit. We think, therefore, that the trial court was right in sustaining the general demurrer to the petition because there was no payment or tender of the money received by the plaintiff under the release executed by her promptly upon her discovery of the alleged fraud and before the commencement of the action. Even if it be conceded that the release was obtained by fraud, the plaintiff was compelled, under the rules of law applicable to this case, to repay or tender to the defendant the money received under the contract before bringing an action the effect of which was to set it aside. We have considered all of the arguments and the authorities presented by counsel for the plaintiff in their briefs. It is sufficient to say that they have cited no statutes or cases, applicable to the facts of this case, which require or authorize a different ruling.
Since we are affirming the judgment sustaining the general demurrer and dismissing the case on the ground stated herein, it is not necessary to decide whether the allegations of the plaintiff's amendment were sufficient to show such fraud as would avoid the release contract. In view of our ruling that the failure of the plaintiff to rescind the release agreement before the filing of her suit, either by payment or tender of the money received for the release, was fatal to her cause of action, it is unnecessary to decide any other questions as to the sufficiency of the plaintiff's pleadings.
2. The plaintiff makes the contention that the trial court could not, in passing upon the demurrer to the petition, consider the plea of accord and satisfaction which had been filed by the defendant. It is true that a court will not consider an answer, as *764
such, of a defendant to a petition in passing upon a demurrer to the petition. But where, as in this case, a plaintiff amends her original petition by admitting that she executed a release to the defendant, and seeks to avoid it as an accord and satisfaction, pleaded by the defendant, her amended petition must be considered as a whole, including her admission that the contract was made as well as the attack which she makes upon it. If it appears from the petition as amended that the plaintiff executed the contract set up and relied on by the defendant as an accord and satisfaction, and the plaintiff fails to allege facts which are sufficient to overcome or avoid the plea, the demurrer to the amended petition will be sustained. Physical precedents for the action of the court in sustaining the demurrer to the petition in this case, after the plaintiff had amended it by adding allegations admitting the release and seeking to avoid it, are found in Morris v. Seaboard Air Line Ry.,
Judgment affirmed. Sutton, P. J., concurs.
Concurrence Opinion
I concur in the judgment, for the reason that the plaintiff's petition as amended does not allege that she did not know the provisions contained in the draft and receipt at the time of the filing of the action. While she alleges that she could not and did not read the receipt, it will not be inferred as against a demurrer that she could not and did not read the draft or have it read to her. If the allegations had shown that the plaintiff did not know the nature of the releases she signed until they were pleaded by the defendant, and had alleged good reasons why she did not, I do not think that a tender before the action was filed would be required, but that a tender as soon as she knew of such papers would be sufficient. The petition does not show when the draft was cashed, and that alone would not authorize a conclusion that she discovered a fraud before the draft was paid. The rule is that tender usually must be made before an action is filed. To bring herself within the exception, the plaintiff must allege that she was ignorant of the fraud at the time she filed the action. This she does not do. *765