A.D.L. Sales Co., Inc. v. Gailey

• Decision Date: 16 March 1934
• Docket Number: 23669.
• Citation: 173 S.E. 734,48 Ga.App. 798
• Parties: A. D. L. SALES CO., Inc., v. GAILEY.
• Court: Georgia Court of Appeals

173 S.E. 734

48 Ga.App. 798

A. D. L. SALES CO., Inc., v. GAILEY.

No. 23669.

Court of Appeals of Georgia, Second Division

March 16, 1934

Error from City Court of Hall County; B. F. Whelchel, Judge.

Suit by the A. D. L. Sales Company, Incorporated, against L. V Gailey. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Harry S. McCowen, of Atlanta, and Herbert R. Edmondson, of Gainesville, for plaintiff in error.

Frank B. Stow, of Gainesville, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

1. The owner of a conditional bill of sale to personalty, on default by the vendee as to the payments thereunder, may foreclose the same in the same manner as chattel mortgages are now foreclosed in this state. Civ. Code 1910, § 3298.

2. When an execution shall issue upon the foreclosure of a conditional bill of sale, the vendee or his special agent may file an affidavit of illegality to the execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the conditional bill of sale and which goes to show that the amount claimed is not due. Civ. Code 1910, § 3300.

3. Failure of consideration is a good defense to set up by way of affidavit of illegality to an execution issuing under the above section. Smith v. Walker, 93 Ga. 252, 18 S.E 830; Garner v. Cohen, 99 Ga. 78, 24 S.E. 851.

4. The seller in all cases (unless expressly or from the nature of the transaction excepted) "warrants-- *** 2. That the article sold is merchantable, and reasonably suited to the use intended. 3. That he knows of no latent defects undisclosed." Civ. Code 1910, § 4135. The vendor may be in good faith in the transaction, and yet violate this section.

Newman v. Claflin Co., 107 Ga. 89, 91, 32 S.E. 943. "The adaption of a machine to the uses for which it is made is always warranted." Smith v. Hightower, 76 Ga. 629.

5. The breach of such warranty gives to the purchaser a right to damages, or it may be pleaded in abatement of the purchase money. Civ. Code 1910, § 4136; Springer v. Indianapolis Brewing Co., 126 Ga. 321, 55 S.E. 53.

6. Partial payment, with knowledge of the defective condition, will not always estop the purchaser from pleading partial failure of consideration. Payments made by the purchaser under an agreement by the seller to repair does not estop the purchaser from pleading total or partial failure of consideration. Civ. Code 1910, § 4137; McDaniel v. Mallary, 6 Ga.App. 848, 66 S.E. 146; Finance Co. v. Jones, 33 Ga.App. 94, 125 S.E. 510.

7. "Whenever an action shall be commenced at common law founded upon any contract, the defendant in such action may plead and give in evidence to the jury, upon the trial thereof, that the consideration upon which said contract was founded has totally or partially failed. Such plea shall only be pleaded in cases between the original parties to the contract, or their privies or assignees, whose title has been...