1. This was an action in trover to recover a mare which the plaintiff had swapped to Jim Tolbert for a mule. The suit was brought against R. E. Cobb, J. H. Pounds, and Jim Harris. The court erred in refusing to rule out the plaintiff’s evidence to the effect that Jim Tolbert had represented the mule' to be sound in every respect, no evidence having been introduced that connected the defendants with this transaction, and Tolbert’s representation not having been made in their presence.
2. The right to rescind for fraud in a horse swap exists only where actual fraud has been committed, unless the right to rescind has been expressly reserved. Barnett v. Spier, 93 Ga. 762 (21 S. E. 168); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100); Houze v. Blackwell, 144 Ga. 700 (87 S. E. 1054); Sasser v. Pierce, 6 Ga. App. 321 (64 S. E. 1100); Stovall V. McBrayer, 20 Ga. App. 93 (92 S. E. 543).
3. Under the ruling in the preceding note, and the facts of this ease, it was error for the court to instruct the jury upon the subject of constructive fraud.
4. The' exception based upon the refusal to grant a nonsuit will not be considered, since the case proceeded to a verdict, and the defendants excepted to the overruling of a motion for a new trial which includes the ground that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it.
*104Decided October 31, 1917. Trover; from Haralson ^superior court — Judge Bartlett. April 10, 191?. Griffith & Matthews, for plaintiffs in error. M. J. Head, contra.5. The verdict was not authorized by the evidence, and the court erred in refusing to grant a new trial.
Judgment reversed.
Bloodworth and Harwell, JJ., concur.