Harder v. Carter

• Decision Date: 05 August 1895
• Parties: HARDER v. CARTER.
• Court: Georgia Supreme Court

23 S.E. 82

97 Ga. 273

HARDER v. CARTER.

Supreme Court of Georgia

August 5, 1895

Syllabus by the Court.

Even if the machinery, for the agreed price of which the action was brought, was in fact defective or worthless, yet, as the defendant, after the most complete and ample opportunities for trying and testing it, and with full knowledge of its character and of all its alleged defects, deliberately promised in writing to pay for it, she could not thereafter set up in resistance to such action the defense of failure of consideration, predicated upon alleged defectiveness or worthlessness of the machinery.

Error from superior court, Talbot county; W. B. Butt, Judge.

Action by Minard Harder against S. A. Carter. Verdict for defendant. Motion for new trial overruled, and plaintiff brings error. Reversed.

Though the property for the agreed price of which the action was brought was in fact worthless, defendant in an action for the price could not set up that fact as a defense, where, after ample opportunities for testing the property, and with full knowledge of its character and of all its defects, she promised in writing to pay for it.

The following is the official report:

Minard Harder sued Mrs. Carter upon an account for one Peerless two-horse power, with two belt wheels, one the regular 42-inch wheel, and the other 24x6, for cotton-gin use; the amount of the account being $147. The defendant pleaded failure of consideration; that the horse power was sold to her as first class, perfect, and complete, whereas it was not, but was worthless; and that the horse power was sold to her for the purpose of running a gin, which purpose plaintiff knew when she bought the machinery, and reported that the same was suitable for running defendant's ginnery, but the machinery, though used as directed by plaintiff, was not so suitable, and could not be used for running the ginnery. There was a verdict for defendant, and, plaintiff's motion for a new trial being overruled, he excepted. The motion was upon the general grounds that the verdict was contrary to law, evidence, etc., and upon the ground that it was contrary to a certain specified portion of the charge.

The evidence introduced for plaintiff consisted of the testimony of plaintiff and employes of the plaintiff, and of correspondence between plaintiff and defendant. From the testimony the following appears: The only contract between plaintiff and defendant shows that the machinery was sold and purchased for threshing and sawing, as well as for ginning cotton, and both parties to the contract so understood the sale. It was for this reason that the two belt wheels instead of one, were sold and purchased. Defendant received the machinery, operated and used it, after which she agreed to pay for it. She has never offered to return it to plaintiff. Plaintiff sent George D. Harder to defendant's house, with instructions only to examine the machinery, to see that it was properly set up, the condition in which it was, how it worked, and to collect the debt; and he had no authority further. There was no representation or agreement made by plaintiff to defendant before the sale as to what weight the horses should be to run the machinery. In February, 1891, George D. Harder was sent to defendant's house to see the horse power. The hands she had operating it did not understand the machinery, how to propel it, put it together, or operate it, and the horses used by her were entirely too light in weight to run the same in ginning cotton, were thin in flesh, and very improperly shod. After said George D. had worked on the machinery, and told her about the weight of the horses in February, 1891, she said she was satisfied with the horse power, and promised to pay for it by draft the next day. The horse power was a first-class two-horse power, when properly set up and worked by good fair horses, well shod, [to] a thresher, wood saw, or cotton gin, and did produce sufficient power to run defendant's cotton gin when George D. Harder was at her house, and was worth $200 at that time and place. It did not require horses of extraordinary weight to run it, but it, as well as all other tread powers, requires horses of good fair weight, properly shod, to operate it well. After George D put it in proper order, he saw it operate well, and gin cotton satisfactorily, and defendant told him she was satisfied with the work it did. When plaintiff sells a horse power solely for ginning cotton, he sells but one belt wheel but when he sells a horse power for ginning, threshing, and sawing wood, he sells two belt wheels, for the reason that two are then necessary. This both parties to the contract of the sale of the horse power in this case understood, and it was mentioned in making the purchase and sale. Defendant made no inquiry touching the weight of horses necessary, and no representation was made to her by plaintiff as to what their...