John Deere Co. v. Lindsey Landclearing Co.

Decision Date16 November 1970
Docket NumberNo. 1,No. 45459,45459,1
Citation178 S.E.2d 917,122 Ga.App. 827
CourtGeorgia Court of Appeals

Syllabus by the Court

1. The verdict was not so lacking in evidence to support it as to be unauthorized.

2. A breach of warranty gives rise to strict liability, which does not depend upon any knowledge of defects on the part of the seller or any negligence.

Plaintiff filed an affidavit to foreclose a security agreement on a John Deere tractor/scraper, and alleged the defendant was indebted to it in the sum of $6516, the unpaid portion of a time balance provided in the security agreement, which was attached to the affidavit. The agreement revealed a total time price of $27,859.51. Execution was issued and the tractor/scraper was levied upon. The defendant filed an affidavit of illegality which, as amended, alleged as follows: that the defendant had overpaid the sum due on the tractor/scraper by $83; that the equipment was defective in both parts and workmanship and was totally unfit for the purpose for which it was sold; that the defendant had paid the plaintiff $21,342.72 for the machine; that as result of its defects the tractor/scraper could not be made to operate properly and had a fair market value of $13,500 at the time it was sold to the defendant that due to plaintiff's breach of warranty, the defendant had to expend $3,500 on repairs; that because of the defective condition, the defendant missed 600 hours of work and lost income in the amount of $7,100. The defendant sought recovery against the plaintiff in the sum of $18,526.63.

The case then proceeded to trial, at the close of which plaintiff made a motion for a directed verdict which was overruled. The jury returned a verdict for the defendant (which allowed the plaintiff to retain the amount which the defendant had already paid) and judgment was subsequently entered thereon. The plaintiff filed its motion for judgment notwithstanding the verdict and a motion for new trial; both motions were overruled by the trial judge. Within the time provided by law, the plaintiff filed its notice of appeal to this court.

Reinhardt, Ireland, Whitley & Sims, Tyron Elliott, Tifton, for appellant.

Roy Benton Allen, Jr., Adel, for appellee.


1. (a) In the arguments before this court both sides relied upon the case of Taylor v. Wilson, 109 Ga.App. 658, 137 S.E.2d 353, which sets out in detail damages which may be recovered for breach of warranty. The plaintiff contends that the defendant failed to establish any of its defenses in that there was no showing that consideration totally failed or in what amount it partially failed.

During the trial, the defendant introduced evidence that from the time of its purchase the tractor/scraper in question failed to operate properly. In this connection several witnesses testified that the tractor/scraper did not dump dirt as it was supposed to; that in operation it took approximately twice as long to perform as it should although repairs were made on it by plaintiff, both during the warranty period of 6 months and thereafter; that the machine still exhibited the same trouble. The defendant himself testified that after the expiration of the warranty period, he spent some $7,000 or $8,000 of repairs on the machine; that in 3 years the machine had only given him approximately 1 1/2 years of workable service; that his parts bills were more than the payments; that he lost profits as a result of the machine's failure to operate properly; that to him the machine was not worth anything but 'surely it has got a value on it, probably a third or half price of what the cost of it is.'

On cross examination, the defendant admitted that he did not know how much he had paid John Deere for parts and repairs and that he did not know exactly how many dollars he had lost. He further admitted that the machine had some value, and in answer to the question, 'how much,' stated 'well I said a third or a half, probably, or something like that.'

In his affidavit of illegality the burden of proof was on the defendant. Messer v. Hewitt, 98 Ga.App. 498(1), 106 S.E.2d 61. There is a plethora of authority for the proposition that a plea of total failure of consideration is not meritorious where there is evidence that the item has some value. See for example, Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558, 54 S.E. 538; Brown Shoe Co. v. Crosby, 30 Ga.App. 534(4) 118 S.E. 446. Moreover, in order to sustain a plea of partial consideration, it is necessary that the evidence furnish sufficient data to enable the jury to estimate, without guesswork, in what amount the consideration has partially failed. Hunnicutt Co. v. Kane, 21 Ga.App. 665(2), 94 S.E. 821; Harmon v. Adolph Block & Co., 32 Ga.App. 700(1), 124 S.E. 548; Frick Co. v. Lawson, 50 Ga.App. 511, 517, 179 S.E. 274; Hall v. Southern Sales Co., 81 Ga.App. 392, 393 58 S.E.2d 925. Of course, a plea of breach of warranty is substantially a plea of failure of consideration. Pryor v. Ludden & Bates Southern Music House, 134 Ga. 288, 290, 67 S.E. 654.

This case is controlled by a ruling in Sea Island Cotton Gin Co. v. Fowler, 37 Ga.App. 792, 142 S.E. 173. That case involved a suit to recover a balance due on the purchase money in the amount of $360 of a cotton gin outfit to which the defendant pleaded total and partial failure of consideration. The defendant introduced evidence that the machine could not be made to gin only one bale of cotton where it should have turned out 6 to 7 bales per day. The defendant testified the gin '* * * was 'worth whatever junk might be worth,' that he 'would take $5 for it and help load it; it is not worth more than $5; I would not give $2.50 for it. " The court held that the evidence authorized the inference that the consideration had partially failed and pointed out: 'Even assuming that the evidence could be taken as demanding an inference that the outfit was capable of ginning some cotton and therefore had a value greater than its value for junk, yet, although the evidence may have contained no estimate as to such value, it appears, from the fact that the jury in finding for the defendant failed to find in any amount against the plaintiff on the defendant's plea of recoupment, in which he prayed for a return of the part payment on the purchase-money, viz., $120, which issue the court submitted in the charge, that the jury may, from all the facts and...

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6 cases
  • McDonald v. Mazda Motors of America, Inc., A04A1411.
    • United States
    • Georgia Court of Appeals
    • August 10, 2004
    ...of fault or knowledge, where the breach of warranty conditions are satisfied. OCGA § 11-2-314; John Deere Co. v. Lindsey Landclearing Co., 122 Ga.App. 827, 831(2), 178 S.E.2d 917 (1970); accord Pierce v. Liberty Furniture Co., 141 Ga.App. 175, 176(3), 233 S.E.2d 33 (1977) (superceded by sta......
  • Perton v. Motel Properties, Inc.
    • United States
    • Georgia Court of Appeals
    • February 11, 1998
    ... ...         Woodall & MacKenzie, John T. Woodall, Peter A. Giusti, for appellee ...         [230 ... of the [bailee], or any negligence." (Punctuation omitted.) John Deere Co. v. Lindsey Landclearing ... Co., 122 Ga.App. 827, 831(2), 178 S.E.2d ... ...
  • Coe & Payne Co. v. Wood-Mosaic Corp.
    • United States
    • Georgia Court of Appeals
    • March 10, 1972
    ...nature. See Prosser on Torts (3d Ed.) § 95, pp. 651-652; Marival v. Planes, D.C., 302 F.Supp. 201, 207; John Deere Co. v. Lindsey Landclearing Co., 122 Ga.App. 827, 831, 178 S.E.2d 917. Be that as it may, these appeals arise in substance from the grant of summary judgments for Overall Paint......
  • Coast Scopitone, Inc. v. Self, 47392
    • United States
    • Georgia Court of Appeals
    • September 25, 1972
    ...and certainty that the jury (or judge) could, without guesswork or speculation, arrive at the amount. John Deere Co. v. Lindsey Landclearing Co., 122 Ga.App. 827, 828, 178 S.E.2d 917; Moore v. Smith, 31 Ga.App. 491, 121 S.E. 136; Hall v. Southern Sales Co., 81 Ga.App. 392(2), 58 S.E.2d 925,......
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