Williams v. Fouche
| Decision Date | 16 January 1924 |
| Docket Number | (No. 3796.) |
| Parties | WILLIAMS et al. v. FOUCHE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Dougherty County; W. V. Custer, Judge.
Action by B. E. Fouche against Prank Williams and others. Judgment for plaintiff on demurrer, and defendants bring error. Reversed.
Claude Payton and Pope & Bennet, all of Albany, for plaintiffs in error.
Lippitt & Burt, of Albany, for defendant in error.
HINES, J. [1] 1. The plaintiff brought his action to rescind a contract under which he purchased from the defendant Williams 50 shares of the capital stock of the defendant Eureka Lumber Company, on the ground of alleged false and fraudulent representations made by Williams to induce him to purchase said stock, on which he relied in buying the same, and by which he was deceived and defrauded. He further sought to recover certain property given by him to Williams in part payment of the purchase money for said stock, and to cancel his note given in part payment therefor. The petition alleges that the plaintiff is the owner and is in possession of said 50 shares of stock. There is no allegation in the petition that the plaintiff restored, or offered to restore, said stock to the selling defendant before instituting this suit for rescission; and there are no equitable reasons given by plaintiff for his failure to do so. The petition does allege that the plaintiff is ready to deliver up said stock to Williams. The defendants demurred to the petition on the ground, among others, that there are no facts set forth therein which would authorize the relief prayed. The court below overruled the demurrer. To this judgment these defendants excepted pendente lite, and assign error on these exceptions in the bill of exceptions in this case. These defendants insist that the petition makes no case for rescission, because it fails to allege that on the discovery of the fraud for which he seeks to rescind the contract, and before bringing this action, he offered to restore to the seller these shares of stock which he received by virtue of the contract. The Civil Code 1910, § 4305,. declares:
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Manning v. Wills
... ... & Western Railway Co., 109 Ga. 666(5), 35 S.E. 82; ... Reynolds & Hamby Estate Mortgage Co. v. Martin, 116 Ga ... 495(2c), 42 S.E. 796; Williams v. Fouché, 157 Ga ... 227, 121 S.E. 217. As was held in DeLamar v. Fidelity Loan ... & Investment Co., 158 Ga. 361, 123 S.E. 116, there must ... ...
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Novare Grp., Inc. v. Sarif
...642 S.E.2d 20 (2007). Where a party elects to rescind the contract, he must do so prior to filing the lawsuit. See Williams v. Fouche, 157 Ga. 227(1), 121 S.E. 217 (1924). Purchasers failed to tender rescission prior to filing their lawsuit. In Williams, the Court recognized that “the rule ......
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Puckett v. Reese
... ... which fails to allege restoration or offer to restore before ... institution of the suit is demurrable.' Williams v ... Fouche, 157 Ga. 227, 121 S.E. 217. 'While a contract ... may be rescinded for fraud, the party defrauded must exercise ... ordinary ... ...
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Henderson v. Lott, (No. 5426.)
...to restore, the consideration received thereunder, as a condition precedent to bringing the action for that purpose. Williams v. Fouche, 157 Ga. 227, 121 S. E. 217. While it is true that fraud vitiates a contract, such contract is nevertheless not void, but voidable only, at the instance of......