Hoffman v. Oates

• Decision Date: 31 October 1886
• Citation: 77 Ga. 701
• Parties: Hoffman. vs. Oates, executor.
• Court: Georgia Supreme Court

77 Ga. 701

Hoffman. vs. Oates, executor.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

Charge of Court. Warranty. Practice in Supreme Court. Before Judge Marshall J. Clarke. Fulton Superior Court. September Term, 1885.

Oates, as executor of Baker, deceased, brought an action of complaint against Hoffman, on a promissory note, dated May 26, 1881, due thirty days after date, for $450. On it were two credits, one dated May 27, and one July 26, 1881, and the balance was sued for. The defendant pleaded failure of consideration, in that the note sued on was given for a balance due on horses, which were represented to be sound, healthy and reasonably suited to the purposes for which they were intended; but that within a few days one of them went blind in one eye, another became totally deaf, and a third became spavined about the time the note was given; so that they proved of no value to defendant. He also pleaded that the horses were impliedly warranted to be reasonably suited to the purpose for which they were intended, and that the defects already stated amounted to a breach of the warranty and damaged defendant to the extent of $365.

On the trial, the plaintiff introduced the note sued on and closed. The defendant introduced testimony tending to show that he had purchased the horses from Baker in May, 1881, and that within a few days thereafter, the defects above stated were noted. Witnesses testified what they would consider the horses worth in good condition, and what with the defects. It did not appear what price was put on the horses in the purchase. There was some discrepancy in the descriptions by witnesses of the man from whom the animals were bought. One stated that spavin was a defect easily detected, and that he noticed this defect at once on seeing the horse when Hoffman bought it from Baker.

The jury found for the plaintiff $150 principal and $46.37 interest. The defendant moved for a new trial on substantially the following grounds, among others:

(1.) Because the court refused to charge as follows: "It is not necessary for the defendant to have made tender and offer to rescind. He can set up his defences when assailed, and also claim damages by way of recoupment without a separate suit."—This was assigned as error especially because the counsel for the plaintiff argued to the jury that, before the defendant could avail himself of his pleas of failure of consideration and recoupment, he must show that he offered to rescind the trade; and the counsel for the defendant combatted this position.

(2.) Because the court, after correctly charging that the plaintiff impliedly warrants that he has a good title and right to sell, and the article must be merchantable and reasonably suited to the use intended for it, qualified such charge as follows: " An implied warranty, however, does not cover defects which can be discovered by ordinary prudence and caution." [On this subject the court charged as follows: " When one sells an article of personal property, he impliedly warrants that it is merchantable and reasonably suited to the use intended, and that the seller knows of no latent defects undiscovered. 'Latent defects' means such defects as are hidden. An implied warranty, however, does not cover defects which can be discovered by ordinary prudence and caution. As to these, the law presumes the buyer to exercise his own judgment. If you believe that the consideration of the note sued on was a lot of horses; that they were not, at the time of the sale, merchantable and reasonably suited to the use intended, and that they were so because of defects which were not discoverable by ordinary prudence, this would be a...