Martha Brady BRUTON
v.
Robert R. BLAND, Jr., T/A and Doing Business as Bland Music Store.
No. 383.
Supreme Court of North Carolina.
October 30, 1963.*911 George W. Gordon, Greensboro, for plaintiff appellant.
Deal, Hutchins & Minor, by Fred S. Hutchins and Edwin T. Pullen, Winston-Salem, for defendant appellee.
PER CURIAM.
When a person discovers that he has been fraudulently induced to purchase property he must choose between two inconsistent remedies. He may repudiate the contract of sale, tender a return of the property, and recover the value of the consideration with which he parted; or, he may affirm the contract, retain the property, and recover the difference between its real and its represented value. He may not do both. Once made, the election is final. The election must be made "promptly and within a reasonable time after the discovery of the fraud, or after he should have discovered it by due diligence * * *." May v. Loomis, 140 N.C. 350, 52 S.E. 728; Hutchins v. Davis, 230 N.C. 67, 52 S.E.2d 210; Parker v. White, 235 N.C. 680, 71 S.E.2d 122.
In this case, plaintiff regularly used the piano for over nine years before she discovered it was not a new instrument. Thereafter she continued to use it in teaching for two more years before instituting this action to recover the full purchase price. By such continued use she thereby elected to affirm the contract. She may not now rescind. Hence, she is not entitled to the relief prayed for in the complaint.
However, it is well settled that where the facts alleged and proven do not entitle the party to the only relief prayed but do give him a right to other relief, he may recover the judgment to which he is entitled. Woodley v. Combs, 210 N.C. 482, 187 S.E. 762; Freemont City Board of Education v. Wayne County Board of Education, 259 N.C. 280, 130 S.E.2d 408. In Knight v. Houghtalling, 85 N.C. 17, defendants sought to rescind their contract for the purchase of land in plaintiffs' action to foreclose a purchase money mortgage. The answer contained but a single prayer for reliefrescission for fraudulent misrepresentation. A jury verdict established the fraud. The Court held that defendants' failure to act promptly after they discovered the fraud barred their right to rescind the contract, but the case was remanded in order that defendants' damages resulting from the fraud might be determined. The Court said:
"But we understand that, under the Code system, the demand for relief is made wholly immaterial, and that it is the case made by the pleadings and the facts proved, and not the prayer of the party, which determines the measure of relief to be administered, the only restriction being that the relief given must not be inconsistent with the pleadings and proofs."
Although she may not now rescind her contract of purchase, plaintiff's complaint and evidence were sufficient to take her case to the jury on the issues of actionable fraud and damages. The judgment of nonsuit is
Reversed.