I think the judgment of the trial court should be affirmed, and therefore dissent from the ruling made in division 2 of the above decision, which reverses the judgment of the trial court. The jury was authorized to find from the evidence that at the time the first contract between the parties hereto was made, the salesman of the Southern Auto Company represented to Mrs. Fletcher that the automobile which he was trading to her was a 1937 Packard; that it had a sign pasted on the windshield saying it was a 1937 model Packard; and that the salesman of this automobile company told the lady employee in the office of the company to order a tag (license number) for a 1937 Packard that he was trading to Mrs. Fletcher; that within a day or two after the first trade was made, Mrs. Fletcher brought the car back to the company, complaining that it used too much oil, and after some negotiations the parties by agreement rescinded or canceled the first contract and entered into the second contract, which was in the form of a note and sales contract; and according to the evidence of the plaintiff, the salesman of the automobile company represented to her at that time that the written contract called for a 1937 Packard. The jury was authorized to find from the evidence that the plaintiff was not able to read the contract so as to understand that it called for a 1936 Packard, instead of a 1937 Packard. The second contract is the one here involved and in fact is the only one in existence, as the evidence of both parties shows that the first contract was canceled by agreement of the parties. The first contract was canceled and the sale of the automobile to the plaintiff was consummated by the second contract, and under the evidence, this second contract extinguished the first one. SeeFarmers Merchants Bank v. Rogers, 55 Ga. App. 38 (189 S.E. 274), and cit. While the plaintiff had been in possession of the automobile a few days before the contract in question was entered into, still she did not know the Packard was a 1936 model, and if the seller fraudulently misrepresented the contents of the contract in respect *Page 304 to the subject-matter of the sale, she would be entitled to a rescission of the contract. In Grimsley v. Singletary,133 Ga. 56, (65 S.E. 92, 134 Am. St. Rep. 196), it was ruled: "Where an illiterate person, unable to read, signs a written instrument in ignorance of its character or contents, believing it to be an instrument of a different nature, and is induced to do so by the misrepresentations of the other party, whose good faith he has no ground to reasonably suspect, as to the nature or contents of such writing, he is not bound thereby, although he does not request the opposite party or any one else to read the paper to him before he signs it." The written contract is not in the record before this court, but it is conceded by both parties that it called for a 1936 model Packard, and that the plaintiff received such a model. Whether or not the plaintiff was able to read the contract so as to understand that it specified a 1936 model Packard was a question for the jury. Although she testified that she could read individual units, she stated she did not know that she could read a combination of four figures if presented to her. If she was not able to ascertain from the contract that it specified a 1936 model, and if the evidence also authorized a finding that the seller fraudulently misrepresented the contents of the contract in respect to the subject matter of sale, she would be entitled to rescind, and upon her tendering back the 1936 Packard and her demand for the Plymouth car being refused, she would have the right to maintain the trover action here brought. See Yeomans v. Jones, 54 Ga. App. 330 (188 S.E. 62).
The plaintiff in error contends, however, that no artifice or fraud was practiced upon her in procuring her signature to the contract. This contention can not be upheld if the testimony on her behalf is to be accepted. The jury was authorized to find that the salesman said to her that the contract provided for a 1937 model Packard. His representation was, in my opinion, equivalent to stating to her: "Here is your contract. It calls for delivery to you of a 1937 Packard;" but even if ambiguous the jury would be warranted in so construing his remark. Accordingly, this amounted to a trick or device reasonably calculated to induce her to believe that she was to receive a 1937 Packard, and not a 1936 Packard which in fact the contract called for.
The evidence in behalf of the plaintiff on the second trial as to the misrepresentations made to her by the salesman of the defendant *Page 305 with reference to the model of the car as described in the last contract, distinguishes the case as it now stands from the ruling made in 66 Ga. App. 168 (supra), when it was here the first time.
The plaintiff elected to take a money verdict. There was evidence that the reasonable value of the Plymouth car was about $510 at the time of the conversion, less the amount of expense in repairing it, which was shown to be from $60 to $100. The jury returned a verdict for $410, with interest from the date of the conversion, the correctness of the amount of which is not questioned. I think the verdict was authorized, and that the court did not err in overruling the motion for a new trial. I concur in divisions 1, 3, 4, and 5 of this decision, but dissent from the ruling in division 2 thereof.