
    50928.
    TANNER v. PLAZA SPORTSWEAR, INC.
   Quillian, Judge.

Appeal was taken upon certificate from the sustaining of the defendant’s motion to dismiss the plaintiffs claim. The complaint sought to recover cash paid for an item purchased from the defendant and punitive damages. According to the allegations, the defendant operates an apparel businéss from which the plaintiff purchased $44.74 in merchandise; at the time of the purchase signs in the defendant’s store stated in substance that sales were final on any marked down or sale merchandise. Being uncertain as to his wife’s exact measurements and consequently having doubt as to whether the items selected would fit or not, plaintiff questioned an agent for the defendant about whether the merchandise could be returned or not and was told that he could pay for the items and if they were unsatisfactory for some reason they could be returned.

Submitted September 2, 1975

Decided October 20, 1975.

B. W. Crecelius, for appellant.

Rose & Stern, George S. Stern, Benjamin Landey, for appellee.

When the items were returned because they did not fit the defendant gave the plaintiff a credit receipt but refused to refund the cash. An altercation ensued, the police were called by the defendant and the plaintiff was given the option of leaving without his money or merchandise or being arrested at the direction of the defendant, the manager being a part of this transaction at all times.

The defendant answered and counterclaimed. Held:

It is clear that the complaint does not reveal that the plaintiff could not recover "[u]nder any state of facts that could be proved in support of his claim.” Harper v. DeFreitas, 117 Ga. App. 236 (1) (160 SE2d 260). Hence, it was error to sustain the motion to dismiss.

Judgment reversed.

Pannell, P. J., and Clark, J., concur.  