#### MARTHA BRADY BRUTON v. ROBERT R. BLAND, JR., T/A and Doing Business as BLAND MUSIC STORE.

(Filed 30 October 1963.)

1. Election of Remedies §§ 1, 4—

Within a reasonable time after the discovery of fraud inducing the purchase of a chattel the purchaser must either rescind the sale and recover the consideration paid or affirm the sale and recover the difference between the value of .the chattel if it were as represented and its actual value at the time of the sale, and when the purchaser continues to use the chattel for two years after discovery of the misrepresentation the remedy of rescission is no longer available.

S. Sales § 15—

Where plaintiff’s evidence is sufficient to take her case to the jury on the issue of actionable fraud inducing her purchase of a chattel, nonsuit is improperly entered even though plaintiff prays for the relief of rescission and plaintiff’s evidence shows a delay barring that relief, since the prayer for relief is not controlling and plaintiff’s allegation and evidence are sufficient to make out a case on the issue ,of actionable fraud and damages.

Appeal by plaintiff from *McLaughlin, J.,*January 21, 1963 Session of Fobsyth.

Action to rescind .a sale of personal property. Plaintiff, a piano teacher, alleged and offered evidence tending to show that on March 4, 1950 she purchased a Steinway Grand piano from defendant; that relying upon the representation of his salesman that the piano wais a new one, ’she paid defendant $3,365.00, the price of a new piano; 'that in the fall of 1958 the veneer on the piano began -to deteriorate and on March 23, 1959 dhe discovered that it was over eighteen years old at the time she purchased it and worth only $1,500.00. Defendant, who was not an authorized Steinway dealer, conceded .that the piano was a used one but he denied that it was ever represented to ibe new. When .called as an adverse witness by the plaintiff at the trial, defendant’s testimony tended to show that .the plaintiff had damaged the piano by the continuous application of lemon oil furniture polish and by moving it from Siler City to an upstairs garage apartment in Tabor City. Plaintiff testified that after March 23, 1959 she went to defendant and said: “I came to you .as a customer that has paid a good fair price, and I feel like that you should do something in return.” He referred her to his attorney.

On March 30, 1961 plaintiff instituted this action to rescind the sale contract on the grounds of fraud in its procurement and .to re-*430©over the purchase price of the piano. At the ©lose of plaintiff's evidence the judge nonsuited the case and plaintiff appealed.

*George W. Gordon for 'plaintiff appellant.*

*Deal, Hutchins & Minor by Fred S.. Hutchins and Edwin T. Pullen for defendant appellee.*

Per Curiam.

When a person discovers that he has been fraudulently induced to purchase property 'he must ©hooise between .two inconsistent remedies. He may repudiate the contract of sale, tender a return of the property, and recover the value of the .consideration with which he parted; or, he may affirm the contract, retain the property, and recover the difference between its real 'and -its represented value. He may not do. both. 'Once made, the election is final. The election must be made “promptly and within a reasonable time after the discovery of the fraud, or after he .should have -discovered, it by due diligence. . . .” *May v. Loomis,*140 N.C. 350, 52 S.E. 728; *Hutchins v. Davis,*230 N.C. 67, 52 S.E. 2d 210; *Parker v. White,*235 N.C. 680, 71 S.E. 2d 122.

In this case, plaintiff regularly used the piano- for over nine years before .she discovered it was not a new instrument. Thereafter she continued to- use it in teaching for .two. more years 'before instituting this .action to recover the full purchase price. By such continued use she thereby elected to- affirm the contract. She may not now rescind. Hence, ishe is- not entitled to the relief prayed for in the complaint.

However, it is well settled that where the facts *alleged and proven*do not entitle the party to- the only relief prayed 'but do give him a right to other relief, -he may recover the judgment to which he is entitled. *Woodley v. Combs,*210 N.C. 482, 187 S.E. 762; *Board of Education v. Board of Education,*259 N.C. 280, 130 S.E. 2d 408. In *Knight v. Houghtalling,*85 N.C. 17, defendants sought to- rescind -their contract for the purchase of land in plaintiffs’ action to foreclose -a purchase money mortgage. The answer contained but a single prayer for relief — rescission for fraudulent misrepresentations. A jury verdict established the fraud. The Court held that defendants’ failure to- act promptly after they discovered the fraud barred fh-eir aught to rescind the -contract, but the case was remanded in order that defendants’ damages -resulting from the fraud might be determined. The Court said:

> “But we understand that, under -the Code system, the demand for relief is made wholly immaterial, and that it is the case made *431■by the pleadings and the facts proved, .and not the prayer of the party, which determines the measure ¡of relief to be administered, the ¡only restriction being that the relief given muist not foe inconsistent with the ¡pleadings and proofs.”

Although she may not now rescind her contract of purchase, plaintiff’s complaint ¡and evidence were sufficient to take her ¡case to the jury on the issues of actionable fraud ¡and damages. The judgment of nonsuit is

Reversed.