West v. Thompson , 25 Ga. App. 454 ( 1920 )

Luke, J.

1. The right of the plaintiff to recover in this case -depended upon his right to rescind the trade for fraud. And “the right to rescind for fraud in a horse-swap exists only where actual fraud has been committed, unless the. right to rescind has been expressly reserved.” Cobb v. Pope, 21 Ga. App. 103 (93 S. E. 1029), and cit.

2. Conceding that the plaintiff got the worse of the swap, and that he was -thereby defrauded, the evidence fails to affirmatively show actual fraud upon, the part of the defendant; and, it not appearing that the plaintiff had expressly' reserved the right to rescind the trade, that right did not exist. The verdict for the plaintiff, therefore, was unsupported by the evidence; and the court erred in overruling the defendant’s motion for a new trial.

Decided July 14, 1920.

Trover; from city court of Carrollton—Judge Beall. December 15, 1919.

Boykin & Boykin, for plaintiff in error. E. T, Steed, Smith & Smith, contra.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.