Lunsford v. Malsby

• Decision Date: 06 May 1897
• Citation: 28 S.E. 496,101 Ga. 39
• Parties: LUNSFORD et al. v. MALSBY et al.
• Court: Georgia Supreme Court

28 S.E. 496

101 Ga. 39

LUNSFORD et al. v. MALSBY et al.

Supreme Court of Georgia

May 6, 1897

Syllabus by the Court.

1. Where, to an action upon a promissory note given for the purchase price of machinery, the defendant filed a plea of failure of consideration, and, in support of such plea introduced evidence tending to show that the machinery was not reasonably suited to the purposes for which it was intended, because of certain defects existing therein, and where the evidence further showed that at the time of the execution of the note the defendant had actual knowledge of all of such defects, the law of implied warranty on the part of the seller did not inure to the benefit of the defendant but, on the contrary, he was properly held to have waived the same as to all such defects.

2. Upon the trial of such a case, where the note sued on was absolute and unconditional in its terms, evidence of a parol contract and agreement on the part of the seller of the machinery made and entered into at the time of the execution of the note, that, if the machinery would not do a specified amount of work within a given time, the purchaser would not be bound to pay the note, and the signing of the note should be null and void, was inadmissible, as its effect would have been to contradict and vary the terms of the written contract.

Error from superior court, Elbert county; Seaborn Reese, Judge.

Action by Malsby & Avery against Lunsford, Maxwell & Co. Judgment for plaintiffs. Defendants bring error. Affirmed.

John P. Shannon, for plaintiffs in error.

Jos. N. Worley, for defendants in error.

LITTLE J.

This suit was founded upon two unconditional promissory notes. Several pleas were filed by the defendants, and evidence introduced to sustain the defenses made. It appears that the notes were given for the purchase of a certain machine, known as a "L. No. 1 Scientific Grinding Mill, with Cotton-Seed Feeder." It further appeared from the testimony of some of the witnesses that the use for which the machine was desired was known to the plaintiffs; that, when the machine was put in position, the agent of the plaintiffs was sent for to operate the machine, and make it perform the service which it was represented that it would perform; that it entirely failed to grind the seed as rapidly and as fine as it was represented it would do; that a thorough trial of the machine was made by the agent of the plaintiffs after the delivery of the machine, in the presence and with the co-operation of the defendants; that upon such test it developed that it would not do the work according to the representations; and that after this the defendants executed and delivered to the plaintiffs the notes sued on. The jury, under the charge of the court below, returned a verdict for the plaintiffs. The defendants made a motion for a new trial, on the several grounds therein contained, and we are now to pass upon the question whether any error was committed in the refusal of the presiding judge to grant a new trial.

1. The plea of failure of consideration, in so far as it rested upon the alleged unsuitableness of the machine for the purposes for which it was intended, because of certain defects existing therein, could not avail the defendants, under the evidence in the case. The notes were not signed by the defendants until after they had examined the machine and tested it with the aid of the agent of the plaintiffs. It is true that, after examining the machine and thoroughly testing it, the defendants came to the conclusion that it would not perform the service that it had been represented it would perform; that is, grind cotton seed at the rate of 50 to 75 bushels per hour, and of such fineness as that the product could be used for a fertilizer. In the case of Harder v Carter, 97 Ga. 273, 23 S.E. 82, which is analogous to this branch of the present case, it was held that, "even if the machinery for the agreed price of which the action was brought was in fact defective or worthless, yet as the defendant,...