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