Wheeler v. Pioneer Investments, Inc. , 217 Ga. 367 ( 1961 )

217 Ga. 367 (1961) 122 S.E.2d 518

WHEELER
v.
PIONEER INVESTMENTS, INC., et al.

21375.

Supreme Court of Georgia.

Submitted September 14, 1961. Decided October 5, 1961. Rehearing Denied October 24, 1961.

William A. Thomas, for plaintiff in error.

Marvin H. Shoob, A. Tate Conyers, Shoob & McLain, Carpenter, Karp & Mathews, contra.

MOBLEY, Justice.

"One who seeks rescission of a contract on the ground of fraud must restore, or offer to restore, the consideration received thereunder, as a condition precedent to bringing the action; and a petition 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); Ga. Baptist Orphans Home v. Moon, 192 Ga. 81 (14 SE2d 590); Puckett v. Reese, 203 Ga. 716 (48 SE2d 297); Dumas v. Burleigh, 209 Ga. 241 (71 SE2d 545). Accordingly, under the rule of the above-quoted decisions, the trial judge did not err in sustaining a general demurrer to the petition in the case under consideration as the petition which sought rescission of a deed to secure debt and note on the ground of fraud, failed to allege restoration or offer to restore prior to the institution of the suit.

Judgment affirmed. All the Justices concur.