
    8635.
    BAUM v. HOBBS.
    Under the evidence the plaintiff, who sought to recover a promissory note and a cow he had given for a horse, was not entitled to a rescission of the trade; and the verdict in his favor was unauthorized.
    Decided July 25, 1917.
    Trover; from Laurens superior court—Judge Kent. No\ember 21, 1916.
    
      W. G. Davis, for plaintiff in error. Camp & Twitty, contra.
   Broyles, P. J.

This was an action in trover to recover a promissory note for $100 and a milch cow, both given for a horse. The plaintiff elected to take a money verdict, and the jury returned a verdict in his favor for $137.50. The plaintiff’s own evidence showed that he traded for the horse on a Monday, and on the same day drove it home, and in the latter part of the same week discovered certain defects in the horse. His evidence further showed, that, although he promptly carried the horse back to the defendant and complained of its defects, and although on several subsequent occasions he conversed with the defendant on the same subject, he did not demand a rescission of the trade until about a month after the trade, and until after the horse had been badly ruptured. The undisputed evidence in the ease further showed that the rupture had greatly lessened the value of the horse, and that it occurred after the horse had been for “some time” in the possession of the plaintiff. There was no evidence whatever to show that the rupture resulted from any of the defects complained of in the horse. Under such circumstances the plaintiff had no right to a rescission of the trade, and the finding of the jury in his favor was contrary to law and the evidence, and the court erred in refusing to grant a new trial.

Judgment reversed.

Jenkins and Blood-worth, JJ., concur.  