Sunshine Department Stores, Inc. v. H. & D. Folsom Arms Co.

Hall, Judge. The defendant assigns error on the trial court’s granting the plaintiff’s motion for summary judgment. This was an action on account, and the defense is based solely on alleged false and fraudulent representations made by the plaintiff’s agent to induce the sale. The defendant contends that these false representations gave it the right to rescind the sale. An affidavit filed by the defendant in response to the plaintiff’s motion for summary judgment showed that the defendant, after discovering that the merchandise was not as represented by the plaintiff’s agent, offered it for sale, sold a part of it, and paid the plaintiff for the part sold. The defendant thereby waived any right he may have had to reject the whole shipment. Maynard & Cheeves v. Render, 95 Ga. 652 (23 SE 194); accord Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 497; Harden v. Lang, 110 Ga. 392, 396 (36 SE 100); Cohen v. Arenson, 29 Ga. App. 723, 725 (116 SE 658). The case of Hoyle & Abbott v. Southern Saw Works, 105 Ga. 123, 127 (31 SE 137), is relied on by the defendant. There the purchaser attempted to sell the articles delivered pending propositions to the seller for rescission of the contract, but did not effect a sale. The court held that these facts did not [525] alone constitute a waiver of the right to rescind on the ground of fraud. The decision is not contrary to the cases cited supra. Decided October 18, 1963. Westmoreland, Hall & Pentecost, Harry P. Hall, Jr., Donald E. O’Brien, for plaintiff in error. Gerstein & Carter, Joe W. Gerstein, contra. Judgment affirmed. Bell, P. J., and Pannell, J., concur.