Jenkins, P. J.
While I concur in the Judgment arrived at in this case, the reasons which control such a conclusion do not appear to altogether coincide with the views expressed by the majority members of the court, especially in the first division of the *338syllabus. In many jurisdictions even an executed contract of purchase and sale may be rescinded on account of a mere breach of warranty. See Williston on Sales, § 608. But the law of this State as embodied in § 4136 of the Civil Code provides that "a breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. It may be pleaded in abatement of the purchase-money. If the sale be executory, it is a good reason for the purchaser to refuse to accept possession of the goods.” Thus, it has been held both by the Supreme Court and by this court that, in the absence of such fraud as would vitiate the contract, the mere breach of a warranty, expressed or implied, will not authorize a rescission of an executed contract, but leaves the purchaser to his remedy for damages. Clarke v. Neufville, 46 Ga. 261; Woodruff v. Graddy, 91 Ga. 333 (17 S. E. 264, 44 Am. St. Rep. 33); Pound v. Williams, 119 Ga. 904 (47 S. E. 218); Fudge v. Kelly, 4 Ga. App. 630 (62 S. E. 9). I cannot, therefore, concur in the unqualified statement contained in the first division of the syllabus, that “ under a contract of sale where the property actually delivered is materially different from that contracted for, its acceptance by the buyer in ignorance of such material difference constitutes no sale, and no title passes.” The writer’s understanding of the law in such cases is, that, if the defects or discrepancies in the article tended are patent, such as might have been discovered by the exercise of ordinary care and prudence, then acceptance by the purchaser, in the absence of fraud, will operate as an absolute waiver on his part even of a claim for damages growing out of an implied warranty, but that such mere acceptance will not prevent Iris making a claim for damages arising out of an express warranty. But, no matter whether the warranty be express, as it is here, or whether it be only such as is ordinarily implied by law, in neither case, after delivery and valid acceptance has been made, and the contract has thus become executed, can it be rescinded and annulled merely because the goods do not come up to the specifications of the sale agreement. Cook v. Finch, 117 Ga. 541 (44 S. E. 95); Battle v. Livingston, 21 Ga. App. 809 (95 S. E. 314). Fraud will authorize such a procedure. Fraud on the part of the vendor, whereby the purchaser was deceived and misled either into making the contract itself or into accepting delivery thereunder, will authorize a *339rescission, but it is not my understanding that fraud can be proved, on will be inferred, merely by showing that “the property actually delivered is materially different from that contracted for.”
In the instant case the contract was not for the purchase of a particular car, but merely for a particular kind of car. The defendant obligated himself to furnish the plaintiff a new car of a certain make and designated model and at a specified price. The contract itself, thus complete in every essential detail, was not induced by any sort of fraudulent representation. No misstatement of. any existing fact induced the making of the contract. According to the plaintiff’s evidence it was upon the subsequent pretended fulfillment of the defendant’s obligation that fraud was practiced upon him. He is' really not seeking to rescind a contract fraudulent within itself, but has set up a fraudulent breach in its subsequent execution, whereby he, the buyer, was wrongfully deceived into an acceptance which, for this reason, he contends is invalid. While,, under the law, a mere breach of a contract executed by delivery and valid acceptance does not afford good ground for a rescission, still an acceptance which has itself been induced by fraudulent means and deceitful practices should not preclude his right to a rescission. In other words, in order for the acceptance to be binding, as such, upon the purchaser, it too must have been freely and voluntarily made, and must not have been brought about by the practice of fraud.
It is possible to go further than is required in this case, and say that an acceptance on the part of the purchaser is an altogether different thing from a tender on the part of the seller. It may often happen that the seller necessarily transfers physical possession of the goods from himself to the buyer in what amounts to nothing more than a tender. This I understand to be the theory upon which the cases of Cohen v. Lashy, 102 Ga. 846 (30 S. E. 531), and Armsby Co. v. Shewmake, 113 Ga. 1086 (39 S. E. 473), were decided. In the first case the goods were shipped C. O. D., and were immediately rejected upon opportunity to inspect. In the latter case it is expressly stated that no acceptance had been made. But if upon such a tender the seller, with opportunity to inspect, as in this case, accepts the goods, as was done here, even though they contain latent defects of which he was entirely ignorant, he thereupon loses all right to rescind and recover back the *340purchase-money,’ as such, but must rely solely upon his claim for damages under the express terms of the contract, unless it be that fraud has been practiced upon him either in the making of the contract as to an existing fact, or in the execution of the contract, whereby he was wrongfully and fraudulently induced to make the acceptance. In other words, where the contract is untainted with fraud, and where once the goods are fairly accepted by the purchaser, as in fulfilment of the sale agreement, no amount of ignorance on his part that the article was in fact materially different from that contracted for would authorize him to go behind the executed contract, but he is limited to such rights as he may have to an enforcement of the contract itself. In this case, the discrepancy complained of relates to words in the contract descriptive of the quality or variety of the subject-matter of the sale, and, as such, they must be taken as warranties. Miller v. Moore, 83 Ga. 684 (70 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 629); Americus Gro. Co. v. Brackett, 119 Ga. 489 (46 S. E. 657); Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279 (55 S. E. 50). Presumptively the contract is an executed one, since an executed contract is one in which the object of the contract is performed, as where each does what each assumes to do, and nothing remains for either to do. Civil Code (1910), § 4217; Adams v. Barrett, 5 Ga. 415. Thus, the contract in this case being one for the purchase and sale of a described kind and character of automobile, and the purchase-price thereof being fixed, and the purchaser, through his agent, having subsequently paid the purchase-price and apparently accepted delivery of the car upon actual inspection, or full opportunity to do so, the original contract of sale would seem prima facie to have become completely executed (Butler v. Lawshe, 74 Ga. 352). Especially is this true where, as in this case, full rights of ownership, use, and control were exercised and retained by the purchaser for several weeks after such acceptance. The fatal defect in the defendant’s case, as now presented, lies in the fact that, according to the plaintiff’s evidence, the acceptance, while 'apparently made with full opportunity to inspect, may have been, in fact, not so, because of the alleged artful means and deceitful practices perpetrated by the defendant at the time of the delivery, whereby the plaintiff was fraudulently misled and deceived into unknowingly receiving and accepting a car which he had a right to reject, *341and which we may assume, had he not been fraudulently deprived of a fair opportunity to inspect, would have been rejected. The seller should not be permitted to stand upon the execution of a contract by taking advantage of an apparent acceptance which the buyer repudiates and which he contends was fraudulently procured by artful means and deceitful practices. Since the case was determined on nonsuit, and must be considered entirely in the light of the plaintiffs evidence, I concur- in the 'judgment of reversal, for the reason indicated.