J. B. Colt Co v. Bridges, (No. 5141.)

Decision Date16 April 1926
Docket Number(No. 5141.)
Citation162 Ga. 154,132 S.E. 889
PartiesJ. B. COLT CO. v. BRIDGES.
CourtGeorgia Supreme Court

(Syllabus by the Court.)

Certiorari from Court of Appeals.

Action by the J. B. Colt Company against C. B. Bridges. Judgment for defendant was affirmed by the Court of Appeals (34 Ga. App. ——, 129 S. E. 904), and plaintiff brings certiorari. Affirmed.

B. W. Fortson, of Washington, Ga., for plaintiff in error.

Chas. W. Worrill, of Cuthbert, for defendant in error.

HINES, J. [1] This is a certiorari brought to review the decision of the Court of Appeals in Colt Co. v. Bridges, 34 Ga. App.——, 129 S. E. 904. The facts and the rulings made by the Court of Appeals will appear in its opinion in the case. The question for our decision is whether the purchaser could rely upon the implied warranty that the machine purchased by him from this company was reasonably suited to the use intended, and could set up the breach of this implied warranty to show total failure of consideration under the terms of the written contract of sale. The seller in all cases (unless expressly or from the nature of the transaction excepted) warrants that the article sold is merchantable and reasonably suited to the use intended. Givil Code, § 4135.

The written contract of purchase provides that "this instrument * * * covers all the agreements between the purchaser and the company, " and that the contract cannot be "altered or modified by any agent of the company, or in any manner, except by agreement in writing between the purchaser and the company acting by one of its officers." Is the implied warranty which arises in all eases of sales, expressly or from the nature of the transaction, excepted in this case? There is an express warranty by the seller that the apparatus furnished is "a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and that it is on the permitted list of the National Board of Fire Underwriters." Does this express warranty exclude the implied warranty which the law attaches to all contracts of sale, unless expressly or from the nature of the transaction excepted? The seller insists that it does. An express warranty may or may not exclude the implied warranty. Whether an express warranty excludes an implied warranty depends very largely upon the scope and extent of the express warranty. The express warranty may be so extensive as to exclude the implied warranty of the law. In Austin v. Cox, 60 Ga. 520, a fertilizer was "sold under the inspection and analysis of Dr. A. Means, inspector at Savannah, and the department of agriculture at Atlanta." This was an express warranty. Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L.R.A. 374, 20 Am. St. Rep. 329; Americus Grocery Co. v. Brackett, 119 Ga. 489, 46 S. E. 657; Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279, 55 S. E. 50. Yet in Austin v. Cox, supra, this court held that such express warranty did not preclude the maker, when sued upon a note given for the purchase money of this fertilizer, from setting up the implied warranty and its breach to show total failure of consideration, in that the article was not a fertilizer, had no fertilizing properties, and was totally worthless. In Wilcox v. Owens, 64 Ga. 601, guano was "sold and guaranteed under analysis of Dr. Means, inspector, Savannah." This court held that such warranty did not by implication exclude the defense that the fertilizer was not reasonably suited for the purpose for which it was bought. In delivering the opinion of the court Judge Jackson said:

"It is not pretended that the warranty of the title is excluded by this guaranty; is the other implied warranty excluded? There are no words in this contract that expressly except this warranty which the law also puts in it; and the nature of the transaction does not except it, because the thing sold was known by both parties to be for fertilizing the soil, that was the use intended, and that use and its adaptation to it are of the very essence of the contract."

In a written contract of sale of a machine, the writing may express warranties of such character as to exclude the warranty which the statute implies; but if it omits to do so, the law writes into the instrument, as by implication, that the seller warrants that he has a valid title and right to sell, that the article sold is merchantable and reasonably suited to the use intended, and that he knows of no latent defects undisclosed. Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, 67 S. E. 654, 28 L. R. A. (N. S.) 267; John A. Roebling's Sons Co. v. Southern Power Co., 142 Ga. 464, 83 S. E. 138, L. R. A. 1915B, 900; Bond v. Perrin, 145 Ga. 200 (3), 88 S. E. 954; Barber v. Singletary, 13 Ga. App. 171, 78 S. E. 1100. Where the buyer expressly...

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1 cases
  • Bekkevold v. Potts
    • United States
    • Minnesota Supreme Court
    • December 2, 1927
    ...implied by law arise independently and outside of the contract, this provision does not exclude implied warranties." In Colt Co. v. Bridges, 162 Ga. 154, 132 S. E. 889, the contract states: "This instrument * * * covers all the agreements between the purchaser and the company." It expressly......

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