180 Ga. 476 | Ga. | 1935
Petitioner alleges that on July 31, 1933, she entered into a contract with the defendant, whereby she purchased the good will and certain household furnishings located in a building in which the defendant was conducting a boarding-house, executing to the defendant deeds to two certain tracts of land and a note for a stated sum; that the defendant represented to her that the boarding-house was a going concern clearing from two to three hundred dollars per month, that the lady boarders were of the best character, that the house was free from drinking parties, etc.; that after entering into the contract she discovered that all of the representations were false and made with an intent to defraud her of
“It is a well-settled rule that, while a contract may be rescinded at the instance of the party defrauded, the party seeking rescission must act promptly upon discovering the fraud and must restore or offer to restore to the other party whatever he has received by virtue of the contract if it be of any value.” Code of 1933, § 20-906; Couch v. Crane, 142 Ga. 22 (82 S. E. 459); Hinkle v. Hinkle, 148 Ga. 250 (3) (96 S. E. 340); Equitable Building & Loan Asso. v. Brady, 171 Ga. 576, 584 (156 S. E. 222). Construing the petition most strongly against the petitioner, it is not made to appear that she unconditionally offered to rescind the contract or offered to restore the defendant to her original status. Nor did she unconditionally demand a rescission of the contract. She merely notified the defendant that it was her “desire” to do so, and that “if you care to call the deal off,” etc. Even if she acted with sufficient promptness, the other essentials of rescission are lacking. The court did not err in sustaining the general demurrer.
Judgment affirmed.