C. v. Hill Company Inc. v. Weinberg , 67 Ga. App. 44 ( 1942 )

The petition alleges the execution of the contract, recites the express provision of it on which the plaintiff alleges he is suing, and says that this express written provision of the contract has been violated, and that he seeks a recovery for such violation. The provision of the contract is denominated an "express warranty." In Commercial Credit Co. v.Lewis, 59 Ga. App. 144 (2) (200 S.E. 566), this court approved the following: "The warranty whether express or implied, necessarily enters into the consideration of the article sold. A plea of breach of warranty is the substantial equivalent of a plea of failure of consideration; and the defense is allowed upon the principle that the consideration of a note between the parties is always open to inquiry so far as the promise to pay depends upon its existence, continuance, or amount." InChattanooga Beauty Supply Co. v. Fanin, 61 Ga. App. 736,739 (7 S.E.2d 302), this court quoted with approval fromBarnett v. Speir, 93 Ga. 762 (21 S.E. 168), that "Rescission, where a right to rescind is not expressly reserved, can not be had for constructive fraud or merely on account of warranty, express or implied." Here the buyer, the injured party, must not merely offer to rescind, but must in fact rescind. He must complete the recission before the contract is void. Heard v. Coggins, 134 Ga. 52, 54 (67 S.E. 429). The answer of the defendant did not plead rescission, and in my opinion the whole pleading did not raise the issue of rescission, and the judge did not commit reversible error in not charging thereon. I think the plaintiff elected to bring his suit on a breach of an express warranty in the written contract, and then set forth that the reason the warranty was breached was that there was a total failure of consideration, the article sold being of no value. Even if there was an allegation of one or several facts which would be appropriate to some other form of action, yet it would not necessarily change the present form of action which is based on a breach of an express warranty as contained in the written contract, which breach of warranty is set up by way of failure of consideration. First Bancredit Cor. v. McKenzie Lumber Co., 65 Ga. App. 595, 600 (16 S.E.2d 191); Baldwin v. Davis, 188 Ga. 587, 589 (4 S.E.2d 458). I therefore can not concur in the judgment of reversal.