
    11655
    J. B. COLT CO. v. SHEALY
    (126 S. E., 48)
    Sales — The rule announced in J. B. Colt Co. v. Finley, 126 S. E., 47, and found at page 424 of this volume, is controlling in this case.
    Before Rice, J., Lexington, March, 1924.
    Reversed and remanded.
    Action by J. B. Colt Company against Junius C. Shealy. Judgment for the defendant, and plaintiff appeals.
    
      Mr. B. A. Blackwell, for appellant,
    cites: Rescission of order: 40 S. E., 735. Place of making contract: 30 111. App., 288;. 17 N. J. Law, 185; 27 W. Va., 16. Rescission of contract after delivery: 122 S. E., 578. Warranty: 35 Cyc., 138; 37 S. C.', 7.
    
      Mr. T. C. Callison, for respondent,
    cites: Admission of testimony: Jones on Evidence, Sec. 142. Bailure of consideration a matter of-defense: ■ Code 1922,-Vol. 3, Sec. 28...
    
      January 7, 1925.
   The'opinion of the Court was delivered by

Mr. Justice Watts.

This case is identical with the case of J. B. Colt Co. v. J. A. Finley, 126 S. E., 47, decided at the present term of this Court, opinion by Mr. Justice Cothran. The motion of the plaintiff for a directed verdict should have been granted.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for the purpose of entering up judgment in favor of the plaintiff under Rule 27. .

Mr. Justice Fraser concurs.

Mr. Justice Marion concurs in result.

Mr. Chief Justice Gary did not participate.

Mr. Justice Cothran:

I concur in the result, not upon the ground that this case is analogous to or controlled by the case of Colt v. Finley, for I do not think that it is, but upon the ground that the defendant has not established his right to rescission by returning or offering to return the inachine within a reasonable time after discovery of the alleged fraudulent misrepresentations. Ebner v. Haverty Furniture Co. (S. C.), 122 S. E., 578.  