160 Ga. 801 | Ga. | 1925
When this case was before the Supreme Court on a former occasion (Williams v. Fouché, 157 Ga. 227, 121 S. E. 217), it was held: “One who seeks rescission of a contract on the ground of fraud must restore, or offer to restore, the consideration received thereunder, as a condition precedent to bringing the action; and a petition which fails to allege restoration or offer to restore before institution of the suit is demurrable.” It was stated in the opinion that “there are exceptions to this general rule, based upon equitable reasons, . . but this case does not fall within any of these exceptions.” On the basis of that ruling the judgment of the trial court overruling the demurrer to the petition was reversed. When the ease was returned to the trial court the plaintiff tendered an amendment to the original petition, for the purpose of bringing the case within the exceptions. The petition alleged that the plaintiff discovered the falsity of the representations relied on as grounds for rescission, the day prior to the bringing of the suit. The amendment alleged that on the morning of the day the suit was instituted the plaintiff learned that the defendant was in a drunken condition and causing the sawmill property to be dismantled for the purpose of removing it to Florida, and was cursing and shooting his pistol promiscuously on the premises, demoralizing the hands and behaving in a boisterous manner; that it was necessary to sue immediately to preserve the status of the property, and it was impossible to make an offer to restore the property before bringing the suit, because (1) the defendant “was out of his mind and in said drunken and intoxicated condition,” so that a tender would have been useless; (2) the plaintiff feared that the defendant would kill or do him serious bodily harm. The amendment also alleged that as soon as the defendant became sober the plaintiff tendered to him the shares of stock, and the tender was refused. The trial judge allowed the amendment, over the objections that the allegations contained therein were irrelevant and insufficient in law to relieve the plaintiff from making a tender, and error is assigned upon the ruling of the court allowing the amendment. The allegations of
The fifth ground of the motion for new trial complained of the admission in evidence of certain testimony of the plaintiff while he was being examined as a witness in his own behalf. The witness had testified that before the suit was filed, and after he had learned of the alleged misrepresentations of the defendant, he had “started out to the mill where Williams was, to talk the matter over with Williams, and on his way out had met Mr. Rogers.” He then proposed to testify to statements made to him
The judge directed a verdict for the plaintiff. It was a part of the plaintiff’s case to show that the plaintiff had offered to restore the property before bringing the suit, or that the circumstances of the case were sufficient to show an excuse for not making an offer to restore. There was no offer to restore, but the plaintiff amended his petition so as to allege an excuse for not offering to restore. It was a part of his case, and he could have no recovery against the defendant without proof of the facts relied on to excuse him from offering to restore the property. In order to authorize the direction of a verdict for the plaintiff, the allegations relied on to show the offer to restore must be shown by uncontradicted evidence, giving weight to all reasonable deductions to be drawn therefrom. The evidence offered to support the material allegations of the amendment hereinbefore referred to was: The plaintiff testified: “I discovered that the representation made to me by Frank Williams . . was false. When I discovered it the first thing I did I came to your [plaintiff’s attorneys’] office, . . on Thursday afternoon. . . It was too late, you
The witness Eogers testified: “I saw Frank Williams on the 17th day of November, 1922, at his mill . . about daylight that morning. . . He came out where I was hauling lumber; asked me to take a drink. I told him I never did refuse; so we went on to the car, and taken a drink of whisky. I got one wagon loaded, and went back out there and asked him to come and check the lumber; and he says ‘Let’s take another drink,’ so I took an
The witness Denson testified: “I am deputy sheriff. On Friday, November 17th, I was given the petition to serve upon Williams, the day it had been filed. I didn’t serve it that day; went to his house. Mrs. Williams came to the door and asked me what I wanted to see him about; told her I had a paper to serve him with. He- was in an adjoining room; could hear him groaning. She said he was not in condition to be served, that he was drunk.” On cross-examination the witness testified: “Mr. Tarver, the sheriff, finally served the paper. I went back the next morning, but could not catch him; he had gone Saturday morning.”
The defendant was not present and did not testify, and there was no contradiction of the witnesses giving the foregoing testimony. But that evidence fails to show that the defendant was
Other assignments of error were made upon the direction of the verdict, that related to the merits of the plaintiff’s case aside from the question of an offer to restore the property, and also upon the lawfulness of the decree that was entered by the court; but as there must be a reversal of the judgment of the trial court for the reasons above stated,' which will cause both the verdict and decree to be set aside, no decision will be made at this time upon such other assignments of error.
Judgment reversed.