
    Gattis v. Louisville & Nashville Railroad Company et al.
    
    No. 11201.
    July 3, 1936.
   Russell, Chief Justice.

In Louisville & Nashville R. Co. v. Gattis, 180 Ga. 389 (178 S. E. 740), this court held that the plaintiff’s petition set forth a cause of action, and that the demurrers were without merit. It appearing from the record that on the trial of the case, in obedience to the ruling just stated, the evidence introduced substantially conformed to the allegations of the petition, the court erred in awarding a nonsuit instead of submitting the issue, under proper instructions, to a jury for their determination.

(a) The absolute refusal of the defendant, in July, to pay the plaintiff anything on his claim for damages did not confine any rights the plaintiff might have had to rescission, inasmuch as he sufficiently alleged that the receipt on which the defendant excused itself for refusing to pay him anything eliminated the doctrine of rescission, and therefore the fact that the plaintiff’s counsel offered the same amount to the defendant in December is wholly immaterial.

(B) If the principles of rescission apply to this case, the return or tender of the money coincidentally with the filing of the suit of petitioner was a sufficiently prompt compliance with the provisions of law upon that subject. Judgment reversed.

All the Justices concur.

James A. Branch and Howard, Tiller & Howard, for plaintiff.

Neely, Marshall & Greene and W. Neal Baird, for defendants.  