188 Ga. 485 | Ga. | 1939
1. Under the decision in Webb v. Atlanta, 186 Ga. 430 (198 S. E. 50), involving the same parties, all of the contentions of the plaintiffs in error as to the invalidity of the paving contract and assessment made by the City of Atlanta and the quality of the work, for which paving notes were given and executions were issued, are directly precluded against the petitioners, except two contentions embodied in their present petition for injunction and not included in their former petition. The first
(a) The second contention of the petitioners for injunction, in addition to their contention that the original paving contract and assessment were illegal, is that the acceptance of the inferior and defective paving was fraudulent, that consequently the paving executions were illegal, and that the giving of the paving notes by the petitioners or their predecessors in title, in ignorance of any such fraud until a short time before the filing of the petition, did not preclude them from making this contention. The original contract and assessment, under the preceding ruling, not being subject to be set aside by reason of their own alleged invalidity, it was necessary to allege sufficient additional facts to show fraud in the acceptance by the city of the paving, There are no such averments of fact, independently of the alleged invalid transactions themselves, alleged fraudulent intent and motive, and mere legal conclusions.
.(5) “It is a well-settled rule that a party who is entitled to rescind a contract on account of fraud or false representation, when he has full knowledge of all the material circumstances of the case, if he freely and advisedly does anything which amounts to the recognition of the transaction, or acts in a manner inconsistent with its repudiation, it amounts to acquiescence, and though originally impeachable, the contract becomes unimpeachable even in equity;” and that it is incumbent upon a party who attempts to rescind a contract for fraud to repudiate it promptly on discovery of the fraud. Hunt v. Hardwick, 68 Ga. 100 (3, a), 103; Pearce v. Borg Chewing-Gum Co., 111 Ga. 847 (36 S. E. 457); Smith v. Estey Organ Co., 100 Ga. 628 (28 S. E. 392); Fowler v. Britt-Carson Shoe Co., 137 Ga. 40, 42 (72 S. E. 407); Tuttle v. Stovall, 134 Ga. 325, 328 (67 S. E. 806, 20 Ann. Cas. 168). The petition
2. Under the preceding rulings, the court did not err in dismissing the petition on general demurrer.
Judgment affirmed.