Anderson v. International Harvester Co.

• Decision Date: 01 November 1921
• Docket Number: 12255.
• Parties: ANDERSON v. INTERNATIONAL HARVESTER CO.
• Court: Georgia Court of Appeals

109 S.E. 417

27 Ga.App. 533

ANDERSON v. INTERNATIONAL HARVESTER CO.

No. 12255.

Court of Appeals of Georgia, Second Division

November 1, 1921

Syllabus by the Court.

Under the rule stated in Pryor v. Ludden & Bates, 134 Ga 288, 67 S.E. 654, 28 L.R.A. (N. S.) 267, a plea setting up a breach of an oral warranty can be maintained in a suit on a purchase-money note, which, though reciting the consideration, fails to integrate within itself the terms of the sale agreement; but where the note sued on recites that "in consideration of such renewal and extension of time of payment, I hereby expressly waive all claims arising out of the purchase of said property and all defenses, statutory or otherwise, to the payment hereof," this provision of the agreement must be taken as a waiver of any express or implied warranties relative to the subject-matter of the sale, with the effect that all previous and contemporaneous representations and warranties are merged into and controlled by the written instrument; nor could the terms of such a writing be altered by subsequent representations or promises unless supported by a consideration. Thus, while it is true that, unless the instrument should expressly or by implication provide otherwise, a vendor is bound by his promise made at the time a purchase-money note is renewed whereby he agrees to remedy existing defects, or to warrant a then undelivered portion of the purchased property ( Atlanta City Street Ry. Co. v. American Car Co., 103 Ga. 254, 29 S.E. 925; Lockett v. Rawlins, 13 Ga.App. 52, 78 S.E. 780), still, under the rule stated, such promises and warranties cannot be enforced, if, in order to do so, it is thereby necessary to add to or vary any of the terms of the agreement, such as are covered by and embodied in the written instrument. Bond v. Perrin, 145 Ga. 200(6), 88 S.E. 954; Case Threshing Machine Co. v. Broach, 137 Ga. 602(1), 73 S.E. 1063. The trial judge did not err, therefore, in excluding the testimony offered by defendant, or in directing a verdict in the plaintiff's favor.

Error from Superior Court, Ben Hill County; O. T. Gower, Judge.

Action by the International Harvester Company against J. W. Anderson. Judgment for plaintiff, and defendant brings error. Affirmed.

D. B. Nicholson and Eldridge Cutts, both of Fitzgerald, for plaintiff in error.

Wall, Grantham & Kassewitz and Clayton Jay, all of Fitzgerald, for defendant in error.

JENKINS P.J....