Georgia Power Co. v. Moody , 1937 Ga. App. LEXIS 432 ( 1937 )

Fulton, J.

Lillie Moody brought an action against Georgia Power Company, for damages for personal injuries. In her petition she alleged, among other things, that she was induced to sign a release relieving the defendant from all liability on account of such injuries; that the release was signed by her at a time when she was mentally incompetent to execute it; that the consideration for said release was a credit of $300 on an electric refrigerator purchased from the defendant; that she had tendered and now tenders back to the defendant the allowance of $300 on said refrigerator, and has and here and now tenders back to the defendant the electric refrigerator and all other electrical equipment purchased by her from the defendant. The evidence discloses that the only effort made to tender to the defendant the consideration mentioned in the petition was that the plaintiff told an agent of the defendant to come and get the electrical appliances, and sent word to him to come and get them. The evidence also discloses that the agent to whom said directions were given had no authority to receive such tender on behalf of the company. This was not a sufficient tender on the part of the plaintiff. Having failed to make a sufficient tender, and having failed to make the tender to one authorized to receive it, she would not be entitled to recover. W. & A. Railroad Co. v. Atkins, 141 Ga. 743 (83 S. E. 139); Dickey v. Winston Cigarette Machine Co., 117 Ga. 131 (43 S. E. 493); Hiller v. Howell, 74 Ga. 174. The court erred in not granting a new trial. In view of this ruling, the other assignments of error are not considered.

Judgment reversed.

Stephens, P. J., and Suilon, J., concur.