Smith v. Estey Organ Co

• Decision Date: 22 March 1897
• Citation: 28 S.E. 392,100 Ga. 628
• Parties: SMITH v. ESTEY ORGAN CO.
• Court: Georgia Supreme Court

28 S.E. 392

100 Ga. 628

SMITH

v.ESTEY ORGAN CO.

Supreme Court of Georgia.

March 22, 1897.

Sale—Rescission for Fraud—Waiver of Right —Return of Property.

1. Where the purchaser of goods seeks to avoid the contract of purchase on the ground of fraud, he must, upon the discovery of the facts constituting the fraud, at once announce his purpose to rescind, adhere to it, and make or offer to make restitution. If he remain silent, retain possession of the goods received under the contract as his own, without complaint, until long after the discovery of the fraud, he will be held to have waived his objection, and will be bound for the purchase price, as though no fraud had occurred.

2. Where the seller of goods, who has retained title, brings an action to recover the same, because of the nonpayment of the purchase price, and a plea is filed by the purchaser alleging fraud in the seller in procuring the defendant to become the purchaser of the goods sued for, and there is no allegation in such plea that he was misled by such representations, or that, upon the discovery of the fraud, he elected to rescind, and no allegation that he then restored, or offered to restore, the seller to his original status, it was without merit, set up no defense to the action, and was properly stricken on demurrer.

(Syllabus by the Court.)

Error from superior court, Crawford county; W. H. Felton, Jr., Judge.

Action by the Estey Organ Company against R. D. Smith on a contract. From a judgment for plaintiff, defendant brings error. Affirmed.

Gustin, Guerry & Hall, for plaintiff in error.

L. D. Moore, for defendant in error.

ATKINSON, J. 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. 18, 508, " of the value of $250. The case being called for trial, plaintiff introduced three notes, made by Smith to it, dated ITebruary 13, 1891, and due six months after date, two of the notes being for $50 each, and one for $100; also a contract entered into by Smith with it for the purchase of an Estey piano, by which contract he bound himself to pay it $250. The title thereto being reserved in the plaintiff until all installments should be fully paid, and, if not paid as they severally matured, upon default of any of the installments said instrument should be delivered to plaintiff upon demand, without any liability on its part to account for or refund any money or thing previously paid upon the price of said Instrument. Plaintiff put in evidence, also, defendant's admission of the demand for, and refusal of the defendant to deliver, the property before the filing of the suit Defendant then submitted an amendment to his plea. On motion of plaintiff this amended plea was stricken. To this ruling defendant excepted. The amendment was as follows: He purchased said piano of the Estey Organ Company on the representations of the said company that the case of the said piano was made of wood known as ebony wood, which wood is very superior for finishing the cases of pianos, which representations were made by said company to induce this defendant to purchase the said piano, which representations were false and fraudulently made, and were known to be false at the time they were made by said company. By reason of said representations, defendant paid to the said Estey Organ Company the sum of $150. Defendant shows that said piano was not an ebony finish, but was only varnished with some material so as to...