100 Ga. 628 | Ga. | 1897
The questions made in the present case arose upon the following state of facts. The Estey Organ. Company' brought its action, against Smith for an upright Estey piano designated as Style 5, No. 18508, of the value of $250.00. The case being called for trial, plaintiff introduced three-notes, made by Smith to it, dated February 13th, 1891,,
1. The amendment ¡offered by the defendant fails as a
2. The amended plea is vicious in another respect. It does not allege an offer to make restitution to the plaintiff upon the discovery of its alleged conduct. One cannot elect to rescind an agreement upon the ground that he was induced to enter into it in consequence of the fraud of the adverse party, and at the same time elect to keep the fruits of the fraudulent agreement. As has been said by a learned judge, “Restitution before absolution is as sound in law as in theology.” JSTor must this restitution be long delayed. It will not. do to say at the time the case comes on for trial, that the defendant then offers to restore the plaintiff his piano. The plaintiff, if obliged to receive it in return, was entitled to restitution at an earlier stage; and the defendant having neither restored nor offered to restore it to the plaintiff upon the discovery of the alleged fraud, he will be held to have elected to keep the instrument, and the law elects for him that he shall pay for it.
Judgment affirmed.