National Computing Scale Co. v. Eaves

• Decision Date: 31 October 1902
• Citation: 42 S.E. 783,116 Ga. 511
• Parties: NATIONAL COMPUTING SCALE CO. v. EAVES et al. EAVES et al. v. NATIONAL COMPUTING SCALE CO.
• Court: Georgia Supreme Court

42 S.E. 783

116 Ga. 511

NATIONAL COMPUTING SCALE CO. v. EAVES et al.

EAVES et al. v. NATIONAL COMPUTING SCALE CO.

Supreme Court of Georgia

October 31, 1902

Syllabus by the Court.

1. A contract of sale contained a guaranty to keep the articles sold in repair during a given time following the sale provided the buyer returned them to the seller for this purpose. There was no express warranty, nor did the nature of the transaction or anything in the contract exclude the implied warranty of the law. Held, that though in such a contract the seller impliedly warranted that the articles sold were reasonably suited to the uses intended the purchaser could not defeat an action brought to recover the purchase money upon the ground that the articles were not so suited, unless it appeared that the articles, when sold were so defective as not to be reasonably suited to the uses intended, or unless they became defective after the sale, and the seller, upon the articles being returned to him, had failed or refused to repair them within a reasonable time, or unless the defect thus arising was of such a character that it could not have been remedied even if the articles had been returned.

2. While, as a general rule, a purchaser of personal property, who pays a portion of the purchase money with a full knowledge that the article sold is defective, cannot recover the amount so paid, still, if at the time the payment is made it is expressly agreed that the defects shall be removed, and the seller fails or refuses to do this, the fact that the payment was made with knowledge of the defect will not alone defeat a recovery.

3. Other than as above indicated, there was no error in any of the rulings complained of.

Error from superior court, Bartow county; A. W. Fite, Judge.

Action by the National Computing Scale Company against W. H. Eaves and another, on which defendants presented a plea in recoupment. Judgment for defendants, and both parties bring error. Reversed.

Joe M. Moon, for plaintiff in error.

Jas. B. Conyers, for defendants in error.

COBB J.

The National Computing Scale Company brought suit in the justice's court against Eaves and another upon four promissory notes. The case was appealed to the superior court, and the trial there resulted in a verdict in favor of the defendants. The case is here upon a bill of exceptions sued out by the plaintiff, complaining that the court erred in overruling its motion for a new trial, and a cross-bill of exceptions sued out by the defendants, assigning error upon various rulings adverse to them.

The notes sued on referred to a contract which had been entered into between the parties, and made the same a part of each note. It appears from this contract that the plaintiff had sold to the defendants a set of computing scales for the sum of $80. In this contract appeared the following words "Guaranty. Should said National computing scales get out of order at any time within two years from date of shipment, with ordinary use (not dropped or broken), the National Computing Scale Co. to quickly repair the same free of charge; the purchaser paying transportation charges to and from the factory." Other than this clause, there was no reference in the contract to the subject of a warranty. The defendants had paid one-half of the purchase money, and the notes sued on were for the balance claimed to be due by them. The defendants' plea set up that the consideration of the notes had entirely failed, and that the scales were not reasonably suited to the uses intended, and that by reason of these facts they had been damaged to the extent of the sums paid by them on the purchase money, and other damages set forth in the plea, resulting from an attempt to use the scales. While there is no express warranty in the...