Code Ann. § 20-906 ( 83 Ga. 560, 10 S.E. 350). See Dimmick v. Pullen, 224 Ga. 452 ( 162 S.E.2d 427) (1968); Wheeler v. Pioneer Investments, Inc., 217 Ga. 367 ( 122 S.E.2d 518) (1961). The common law requirement contained in this Code section serves two distinct, although complementary, purposes.

Code § 20-906. Under the equitable maxim and legal principle embodied in the Code sections above quoted this court has held that an offer to restore whatever of value one has received under a contract is a condition precedent to bringing an action for cancellation or rescission of the contract, and that such tender must be made before such action is commenced. Williams v. Fouche, 157 Ga. 227, 228 ( 121 S.E. 217); Wheeler v. Pioneer Investments, Inc., 217 Ga. 367 ( 122 S.E.2d 518). In this case the plaintiff received all of the defendant's capital stock in I. C. Dimmick Company and a note of the company for $5,000 and other things of value as consideration for the note which he seeks to have canceled. It does not appear that any tender back to the defendant of these things of value was ever made before the plaintiff's action was filed or that such tender was excused because, if it should have been made, the defendant would have refused it. Wilson v. McAteer, 206 Ga. 835 ( 59 S.E.2d 252). Under these circumstances the plaintiff was not entitled to a judgment in his favor on the prayers in his petition, and the trial court did not err in rendering the summary judgment in favor of the defendant.

4. If the petition had not been otherwise fatally defective, it could not be maintained, since it fails to allege a tender to the grantee of the purchase price of the property prior to the filing of the action. Wheeler v. Pioneer Investments, Inc., 217 Ga. 367 ( 122 S.E.2d 518). 5. The trial judge did not err in sustaining the general demurrers.

Code § 20-906. Williams v. Fouche, 157 Ga. 227 (1) ( 121 S.E. 217); Wheeler v. Pioneer Investments, Inc., 217 Ga. 367 ( 122 S.E.2d 518) and the cases there cited. In the instant case the petition alleges that plaintiff resided with and was cared for by the defendants at their home in Savannah from January 2 to September 22, 1962, and it does not allege that he paid or tendered to the defendants any compensation for the care and support he received from them during such period.

" Kot v. Richard P. Rita Personnel System, 134 Ga. App. 438 ( 214 S.E.2d 690). See also Hart v. Trust Co. of Columbus, 154 Ga. App. 329, 330 ( 268 S.E.2d 384); Woodall v. Beauchamp, 142 Ga. App. 543, 545 (1) ( 236 S.E.2d 529); Wheeler v. Pioneer Investments, 217 Ga. 367 ( 122 S.E.2d 518); Puckett v. Reese, 203 Ga. 716 ( 48 S.E.2d 297); Nixon v. Sandy Springs c. Center, 167 Ga. App. 272 ( 306 S.E.2d 362). While defendants contend that they are not indebted in any sum due to fraud in the procurement of the sales contract, the alleged misrepresentations being in regard to the revenues and profits of the business which defendants purchased, defendants continued to own the business and use the assets purchased from plaintiff up to February 1986.

1. "One who seeks rescission of a contract on the ground of fraud must restore, or offer to restore, the consideration received thereunder, as a condition precedent to bringing the action; and a petition which fails to allege restoration or offer to restore before institution of the suit is demurrable." Wheeler v. Pioneer Investments, Inc., 217 Ga. 367 ( 122 S.E.2d 518) and cases cited; Code § 20-906. The law recognizes some excuses for the failure to make tender of the fruits of the contract.