Allen v. Young

• Decision Date: 28 February 1879
• Parties: Allen. v. Young.
• Court: Georgia Supreme Court

62 Ga. 617

Allen. v. Young.

Supreme Court of the State of Georgia

(February Term, 1879.)

62 Ga. 617 Practice in the Supreme Court. Sales. Warranty. Evidence. Before Judge Crawford. Talbot Superior Court. September Adjourned Term, 1878.

Young brought complaint against Allen, in the statutory form, on two notes, payable to Pacific Guano Company, or bearer, one dated March 31, 1877, for $70.00, the other dated May 16, 1877, for $35.00, both due on October 15, after date, given for "Pacific Guano." The notes contained this stipulation: "It is further agreed that I purchase the fertilizer for which this writing is given in settlement, entirely upon the basis of the analytical standard guaranteed by the company, and will in no event hold it responsible beyond such standard, nor in anywise for practical results."

The defendant pleaded the general issue, and failure of consideration, in this that the analytical standard guaranteed by the Pacific Guano Company, constituted a good and valuable fertilizer, whilst the article sold to him did not come up to such standard, failed to contain the same ingredients, and in the like quantities and proportions as in such standard, and was defective and worthless as a fertilizer.

He also pleaded partial failure of consideration in this, that Jenkins, the agent selling the fertilizer, falsely represented it to be equal to and like the said standard, whilst it was only one-fifth the value of that.

*The plaintiff introduced the notes sued on, and closed. The defendant introduced the admission of plaintiffthat two notes were given to him for "Pacific Guano;" that the Pacific Guano Company had issued its guaranteed analytical analysis, and warranted the article to come up to that standard; that that analysis constituted a good fertilizer.

The defendant introduced James Allen, who testified that he was present when Jenkins, the agent of the Guano Company, sold to defendant the fertilizer for which the notes sued on were given.

Defendant asked the witness what representations or warranty Jenkins made about the guano? To this question objection was made, which was sustained by the court, and defendant excepted.

Defendant asked if Jenkins warranted or represented the guano to be good? A similar objection to this question was sustained, and defendant excepted.

Defendant then asked if witness knew the crop on which defendant placed the guano, and the effect it had on its production? A similar objection to this question was sustained, and defendant again excepted.

The jury found for the plaintiff. Error was assigned upon each of the above grounds of exception.

When this case was called, counsel for defendant in error moved to dismiss it because the notes sued on and introduced in evidence were not embodied in the bill of exceptions. It will be observed that no motion for a new trial was made. Hence there could be no brief of evidence in the record. The bill of exceptions recited that "the plaintiff read in evidence the two promissory notes sued on, copies of each of which are attached to the plaintiff's declaration." These copies, thus attached, were in the record.

The court overruled the motion.

Marion Bethune; J. M. Mathews, for plaintiff in error, cited 49 Ga., 602; 53 Ib., 625

Willis & Willis, by Z. D. Harrison, for defendant.

*BLECKLEY, Justice.

1. In statutory complaint, the writings declared upon, copies thereof...