*624ON MOTION FOR REHEARING.
The eases relied upon in the motion for a rehearing have no application, to a state of facts like those which are pleaded by the plaintiff in the case at bar. While the plaintiff alleged that he made no attempt to read the paper, he further averred he would have been unable to do so had he tried, and facts are pleaded supporting this conclusion. The petition was not subject to demurrer for showing that he made no effort to read, since it appears from the other averments that such attempt, if made, would have been ineffective and altogether useless.
With reference to “wages,” it is distinctly disclosed that no wages were due, and while this term was applied, it was only a name for a gratuity. The sum was not paid for back time or lost time, but (considering the allegations as true) it was tendered and accepted under the defendant’s representations that it was only in the nature of a gift, though not so called. It had no relation to the plaintiff’s claim for damages — constituted no “ element ” thereof (as in Western & Atlantic Railroad Co. v. Burke, 97 Ga. 560, 25 S. E. 498), but was an entirely separate and distinct matter. It was' neither paid nor received on account of any liability whatsoever by the defendant to the plaintiff. It follows that if the plaintiff was led to accept the money by the fraud of the defendant and under the circumstances alleged, his action may be maintained without a restitution. If he fails to establish by proof the averments made, questions would arise, of course, which are not now in the case!
These statements are made, of course, under the rule that upon demurrer the averments of the petition are to be taken as true.
Rehearing denied.
Jenkins, P. J., and Stephens, J., concur.