
    5255.
    Ewing Brothers et al. v. Bowser & Co.
    Decided January 27, 1914.
    Complaint; from city court of Abbeville — Judge Nicholson. August 13, 1913.
    
      M. B. Cannon, for plaintiffs in error. Hal Lawson, contra.
   Russell, O. J.

1. The defendant filed a plea which sufficiently alleged fraud in the procurement of the contract which was the basis of the suit, and there was evidence to support this answer, and it was consequently error to direct a verdict in favor of the plaintiff.

2. The mere fact that a purchaser of property, who has declined to receive . it, writes to the seller a letter in which nothing more is stated than that he is not in a position to take the property, does not preclude him, when the seller sues him upon the contract, from pleading and proving that the contract of purchase was procured by fraud. The present ease is distinguished by its facts from Fenn v. Ware, 100 Ga. 563 (28 S. E. 238), in which is laid down the well-recognized principle of law that where a party gives one reason for his conduct touching a particular matter, he can not, after litigation has begun, change his ground and “mend his hold,” and put his conduct upon another and different consideration. In the present case the purchaser did not, in the letter referred to, give any reason for refusing to take the property, but merely said generally that he was not in a position to accept it.

Judgment reversed.  