Patterson v. Kamspeck

• Decision Date: 18 July 1888
• Parties: Patterson v. Kamspeck et al.
• Court: Georgia Supreme Court

10 S.E. 390

(81 Ga. 808)

Patterson

v.Kamspeck et al.

Supreme Court of Georgia.

July 18, 1888.

¹

Evidence—Parol—Hearsay—Sale—Pleading.

1. A note for commercial manures, reciting that the manure had the guarantied analysis on each sack, and that the payee purchased on his own judgment, and waiving all guaranty as to effect on crops, was evidently intended to speak the whole contract as to what was guarantied analysis. It was therefore not error to reject alleged representations made by the agent selling the fertilizer as to the grade and chemical ingredients of the same. Code, §§ 2757, 3800; Allen v. Young, 62 Ga. 617. If the representations were made from the analysis in the printed circular furnished theagent by his principal, the circular itself should have been produced, or explanation made of the failure to do so, before evidence of its contents would be admissible.

2. Hearsay and uncertain testimony as to anal-yses, made by the state chemist, and as to dissatis-faction given by the fertilizer to others, their refusal to pay for it, etc., was properly excluded.

3. To authorize the grant of a new trial for excluding evidence, it must be clearly shown that the testimony offered would elucidate some issue made, and was legally admissible for that purpose. If a witness derived information that the fertilizer sold did not come up to the required analysis, from an analysis made by himself of the guano sold, his testimony upon the point would be admissible; but if based on information from others, or from its effects on crops, it should have been excluded. De Loach v. Hardee, 64 Ga. 94; Allen v. Young, 62 Ga. 617.

4. A plea which set up that defendant was to have the privilege of paying the debt in a manner not stipulated in the original contract, and that pursuant to this agreement he paid a part, and was to pay the balance afterwards, but which did not aver that plaintiffs obtained any advantage by this agreement, or that defendant gave any new consideration or additional security, or executed the agreement by paying the amount agreed on, should have been stricken, and all the evidence introduced under it excluded. Code, §§ 2880, 2881.

(Syllabus by the Official Reporter.)

Error from superior court, Bibb county; Simmons, Judge.

Action by Ramspeck & Green against R. M. Patterson on a note for $264, given for the price of a quantity of fertilizer. The note recited that the fertilizer had " the guarantied analysis on each sack;" that it was properly tagged as required by law; that the maker purchased the fertilizer on his judgment, waiving all guaranty as to effects on crops, and provided that the note might be discharged by the delivery, at or before maturity, of cotton of a certain grade, at 15 cents a pound; that the maker should pay all attorney's fees and costs of collection; and that he thereby waived all exemptions as to that note. Defendant filed four pleas, as follows: (1) A general denial; (2) failure of consideration, in that the fertilizer was represented as a very superior article, when in fact it was of no value whatever, and that it was not tagged and inspected according to law, (3) a set-off for money paid to plaintiffs on account of the note in suit before defendant became aware of the fact that the fertilizer delivered to him was not as represented by plaintiffs; and (4) that afterwards the parties agreed that defendant should pay the note in cotton of the grade and at the price...