Morganet A1 v. Printup Bros. & Pollard

• Decision Date: 30 September 1883
• Citation: 72 Ga. 66
• Court: Georgia Supreme Court
• Parties: Morganet a1. vs. Printup Brothers & Pollard, for use.

72 Ga. 66

Morganet a1. vs. Printup Brothers & Pollard, for use.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

[Jackson, Chief Justice, did not preside in this case.]

Promissory Notes. Failure of Consideration. Pleadings. Before W. M. Reese, Esq., Judge pro hac vice. Columbia Superior Court. March Term, 1883.

In addition to the report contained in the decision, it is only necessary to state that each of the first two notes stated its consideration to be " one 6 II. P. engine, 2d hand, and 1 Smith H. P. cotton press;" and the other two stated their consideration to be a cotton gin. The plea of failure of consideration, filed by Morgan, was as follows:

"Defendant says the consideration for which the note for the one 6 H. P. Scofield engine was given has entirely failed, because he says plaintiffs warranted said engine to be full six horse power, and to be in good condition, in all which plaintiffs were mistaken, the engine not being full six horse power, nor was it in good condition, but was a source of annoyance and expense to defendant almost from the time he first bought it until it finally broke down entirely, and is now worthless. And of this he puts himself upon the country. And for further plea in this behalf, defendant says actio non, etc., because he says the consideration of the gin note has failed, because he says the gin was represented as a good gin, when, on the contrary, the ribs of said gin were made of inferior soft metal, and wore out the first season, "

SALEM Dutcher, for plaintiffs in error.

W. D. Tutt, by W. K. Miller for defendant

Blandford, Justice.

1. The defendants in error sued plaintiffs in error on four promissory notes, two for the expressed consideration of one steam engine and one cotton press, two for expressed considera ion of one cotton gin. Defendant pleaded that the consideration of the notes for the steam engine has entirely failed, etc.; and the consideration of the gin noteshas failed, because the gin was represented as a good gin, when, on the contrary, the ribs of the gin were made of inferior soft metal, and wore out the first season, etc.

The court charged the jury, inter alia: 'As to the engine, defendant pleads a total failure of consideration. He might have pleaded a partial failure of consideration, but he has seen fit to plead a total failure of consideration. I charge that, to sustain this plea, he must establish to your satisfaction that the engine was entirely worthless. If you find any...