Sutton v. Coleman , 27 Ga. App. 406 ( 1921 )

Bloodworth, J.

(After stating the foregoing facts.)

This is not a suit for damages because of the breach of an implied warranty, but is one brought to recover the entire purchase-money paid for the automobile, and is based upon the alleged fraudulent substitution of the car which was “ an old car polished over ” and which " had been much used and was badly worn and almost useless to the plaintiff, for the car which he purchased and which was “ new and in good condition.” In such a case as this, before the petition would authorize a recovery, it should show that a valid tender of. the article received by the purchaser was made to the seller upon discovery of the fraud. Granting, but not conceding, that the allegation in the petition, that “ as soon as petitioner discovered that a substitution had been made as aforesaid, he called to see defendant and insisted that he take the car back, but defendant refused to do so,” amounted to a tender, yet the plaintiff lost all right he had to rely upon a tender when he did not make it a continuing one and hold the car for the benefit of the seller, but on the contrary continued to use it as his own property, and did not bring suit until about fifteen months after the date the car was delivered to him, and then attempted to set off the cost of repairs against the use of the car. See Fortson v. Strickland, 23 Ga. App. 608 (2) (99 S. E. 147); Gray v. Angier, 62 Ga. 596.

The petition as amended does not set out a cause of action, and the court did not err in sustaining a motion to dismiss it.

Judgment affirmed,.

Broyles, C. J., and Luke, JJ., concur.