
    13823.
    Hendley v. Chambliss.
    Decided September 22, 1923.
    Trover; from city court of Nashville- — -Judge W. E. Smith.
    
      R. A. Hendricks, for plaintiff in error. W. D. Buie, contra.
   Bell, J.

Where two persons swap horses, in order for one of them to repudiate the contract as void on the ground of fraud perpetrated by the other, and to employ the action of trover to recover the horse which he has given in exchange, the fraud must be actual. Barnett v. Spier, 93 Ga. 762 (21 S. E. 168); Dunn v. Beasley, 143 Ga. 376 (85 S. E. 100). Rescission, -where a right to rescind is not expressly reserved, can not be had for- constructive fraud or merely on account of a warranty, express or implied. Battle v. Livingston, 21 Ga. App. 809 (95 S. E. 314); Melcalf Live Stock Co. v. Short, 23 Ga. App. 690 (99 S. E. 230). In such a ease it is necessary that the plaintiff show either by direct or circumstantial evidence that the defendant knowingly made the alleged false representations with intent to deceive the plaintiff, and that the plaintiff -was deceived and suffered damage thereby. Houze v. Blackwell, 144 Ga. 700 (2) (87 S. E. 1054). Some of the excerpts from the charge were susceptible of a construction by the jury that such rescission would be authorized merely for the breach of an express warranty. A reckless representation of facts as true which the author may not know' to be false is not equivalent to a knowledge of the falsehood, unless “intended to deceive.” Civil Code (1910), § 4410; Gooley v. King, 113 Ga. 1163 (2), 1165 (39 S. E. 486). One of the excerpts complained of, in referring to the effect of reckless representations, omitted the important phrase quoted. Eor these reasons the defendant’s motion for a new trial should have been granted. No other reversible error is assigned.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.  