Under the record of this case, the pleadings and the evidence, the writer thinks the judgment should be reversed. The petition alleged that the car which the plaintiff had traded to the defendant had been disposed of to an innocent party, and also that the retention-title obligation which the plaintiff signed for the car he received had been transferred to an innocent party. The evidence sustained these allegations. The plaintiff would not be required to return what he had received to the alleged perpetrator of the fraud who had made it impossible to restore the original status. "The defrauded party may affirm the contract or rescind the contract within a reasonable time after discovery of the fraud, unless it has become impossible to restore the other party to the condition in which he would have been if the contract had not been made, or unless a third person has in good faith and for value acquired an interest in the goods." Tiffany on Sales, 119, § 62. Since, under the evidence, restoration of status had been made impossible by the alleged perpetrator of the fraud, and since the plaintiff, under the allegations and the evidence, was entitled to receive more than he retained, restitution would be vain. As was said inHenderson Warehouse Co. v. Brand, 105 Ga. 217, 224 (31 S.E. 551), "The doctrine of rescission is based upon restitution, and it is only applicable generally where restitution can or ought to be made."
It was shown by the evidence that the plaintiff had paid the defendant the price of a new car, and even the defendant contended in its plea that the plaintiff had received a new car. If this be true, this was not a warranty excluded from the contract, but was a warranty within the terms of the contract. Therefore, whether one construes the cause of action set out in the petition as for a tort based on deceit arising out of and beyond the terms of the contract, or as an action based on a breach of warranty with actual fraud operating only within the warranty, the cause should have been submitted to the jury on the facts with proper instructions. *Page 733