Adams Tailoring Co. v. Thomas , 31 Ga. App. 787 ( 1924 )

Jenkins, P. J.

1. A judgment of the judge of the superior court, refusing in the exercise of his discretion to sanction a certiorari, will not be reversed unless a. verdict for the petitioner was demanded. Atlantic Coast Line R. Co. v. Bennett, ante, 626; Little v. City of Jefferson, 9 Ga. App. 878 (1) (72 S. E. 436); Rosenbusch v. Lester Book Co., 16 Ga. App. 539 (85 S. E. 675).

Decided March 13, 1924.

2. Conceding (but not deciding) tliat tlie purchaser’s statement of his residence as in the rear of “116 Capitol Avenue in house No. 1,” when he lived in the rear of “116 Capitol Avenue in house No. 3,” was upon its face necessarily a material misrepresentation under the contract, such as would have authorized the seller to exercise the right to require the purchaser “to pay the whole amount” of the contract price “before demanding delivery to him of [the] clothing” which he had bought from the defendant, the jury were nevertheless authorized to find from the . evidence that the seller, with knowledge of such misrepresentation, not only accepted from the purchaser the prepayment of $18.50 fixed by the contract as the amount of installment to be paid “on delivery of said clothing,” but with such knowledge expressly informed the purchaser, “if he would pay the $18.50, that he could get his suit.” Consequently, any right which the seller might have had under the contract to vary the original terms of payment and require the full consideration to be paid before delivery of the goods, by virtue of any such misrepresentation, was waived. A verdict for the plaintiff having been authorized, the superior court did not err in refusing to sanction the defendant’s certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur. Jackson & Echols, O. E. Moore, for plaintiff in error, cited:

27 Ga. App. 66; 122 Ga. 312; 23 Ga. App. 304; 5 Ga. App. 420; 10 Ga. App. 676.

Tillou Yon Nunes, John W. Brewer, contra, cited:

27 Ga. App. 66; 16 Ga. App. 539; 9 Ga. App. 878.