Equitable Mfg. Co v. Biggers

• Decision Date: 09 December 1904
• Citation: 49 S.E. 271,121 Ga. 381
• Parties: EQUITABLE MFG. CO. v. BIGGERS.
• Court: Georgia Supreme Court

49 S.E. 271

121 Ga. 381

EQUITABLE MFG. CO.

v.BIGGERS.

Supreme Court of Georgia.

Dec. 9, 1904.

SALE—ACTION FOB PRICE—DEFENSE.

1. Where a written contract of bargain and sale stipulates that "this sale is made under inducements and representations herein expressed, and no others, " it is not a valid defense to an action for the price of the goods that the purchaser was induced to enter into the agreement by reason of false representations made by an agent of the seller, but not contained in the contract, when there is nothing to show that the purchaser was misled or deceived as to its contents, or in any manner prevented from ascertaining the same.

(Syllabus by the Court)

Error from Superior Court, Catoosa County; A. W. Fite, Judge.

Action by the Equitable Manufacturing Company against W. E. Biggers. Judgment for defendant, and plaintiff brings error. Reversed.

W. H. Odell and R. J. & J. McCamy, for plaintiff in error.

W. E. Mann, for defendant in error.

FISH, P. J. The Equitable Manufacturing Company sued Biggers for $185, the price of a lot of jewelry which he purchased from the plaintiff, under the terms of a written contract between them, a copy of which was attached to the petition. The contract contained the following stipulations: "This sale is made under inducements and representations herein expressed and no others. The purchaser hereby waives all right to claim failure of consideration or goods are not like sample or not according to order unless he has exhausted the terms of warranty and exchange." "Warranty and Exchange Obligation: Any jewelry in this assortment failing to wear satisfactorily will be duplicated free of charge if returned to us within five years. Jewelry can be exchanged for new jewelry in plated, filled or solid gold any time within twelve months from date of invoice." "The Equitable Mfg. Co. hereby agrees to send a good bond of $185 to South Chattanooga Savings Bank to protect the purchaser in all the conditions of trade, including the guarantee of profits of $58 a year, each year for three years per slip furnished by the Equitable Mfg. Co."

One of the amended pleas filed by the defendant contained the following allegations: "Defendant says that the writing now attached to the petition was procured by fraudulent representation of the agent of the plaintiff in representing that said goods were merchantable and were all right, when in fact said representation made by said agent, and there set out in said writing, was false. Said agent guarantied that defendant should have a profit of $58 per year...