Sizemore v. Woolard

• Decision Date: 20 December 1907
• Docket Number: 491.
• Parties: SIZEMORE et al. v. WOOLARD.
• Court: Georgia Court of Appeals

59 S.E. 833

3 Ga.App. 261

SIZEMORE et al. v. WOOLARD.

No. 491.

Court of Appeals of Georgia

December 20, 1907

Syllabus by the Court.

A writ of error will not be dismissed when the bill of exceptions contains one sufficient assignment of error, no matter how defective other assignments of error therein contained may be.

A buyer is not presumed to waive defects of which he has no knowledge, but he is held to waive those defects which he knows to exist. Where one gives a note for the purchase of an article which is defective, after full knowledge of its defects, he will be held to have waived the defects, and cannot set up the same by plea of failure of consideration in defense to an action on the note.

[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 817-823.]

Error from City Court of Sylvester; Frank Park, Judge.

Action by H. C. Woolard against G. W. Sizemore, Sr., and G. W Sizemore, Jr. On the death of plaintiff, Mrs. H. C. Willard administratrix, was substituted. Judgment for plaintiff, and defendants bring error. Affirmed.

Payton & Hay, for plaintiffs in error.

J. H Tipton, for defendant in error.

RUSSELL J.

H. C. Woolard sued G. W. Sizemore, Sr., and G. W. Sizemore, Jr., on a conditional sale note and contract. Subsequently to the filing of the bill of exceptions the plaintiff Woolard died, and his administratrix has, by proper order, been made defendant in error in his place. The contract of purchase between the parties, which is attached to the declaration, was dated April 17, 1905, and provided for the payment of the Sizemores to Woolard of $1,200, in three equal payments; the last payment being due December 1, 1905. The consideration, as expressed in the contract, was the purchase price of a boiler, 3 engines, a sawmill with carriage, a shingle mill, a planer, carts and log chains, 17 rollers, and 100 acres of mill timber. Payments had been made on the note which reduced the unpaid balance to $411.83, and judgment was asked for this amount. The defendants, in their answer, denied the paragraphs of plaintiff's petition, and, in addition, pleaded total failure of consideration as to two of the engines, and asked judgment against the plaintiff for the difference between $500, which the plea alleged to be the value of the two engines, and the amount of the plaintiff's demand. On the trial the defendants admitted the execution of the contract, and abandoned the issue raised as to the attorney's fees. The defendants thus assumed the burden of and undertook to establish their plea of total failure of consideration. The testimony in behalf of the defendants was to the effect that the engines mentioned in their plea were totally worthless, of no value for the purpose of producing steam with which to operate the machinery, and of no value unless for scrap iron. The evidence, however, showed unequivocally that the defendant G. W. Sizemore, Sr., made a thorough examination of the machinery before the trade was made; that he was informed that the machinery had "been burned down on," and that he had been engaged in running sawmills and using engines and boilers for four or five years prior to the time of making the trade with Woolard. According to the evidence, the trade was made December 27, 1904. The note with reservation of title, which was the basis of the suit, was made April 17, 1905. The testimony for the defendants further showed that during all the negotiations leading up to the trade of December, 1904, the parties "talked about the whole thing as it stood; the timber and all of this machinery-everything in a lump altogether. This is the way we traded. That is the way Woolard offered it for sale, and that is the way I bought it." At the conclusion of the testimony of the defendant G. W. Sizemore, Sr., the court, upon motion of counsel for the plaintiff, directed a verdict in favor of the plaintiff for the principal, interest, and attorney's fees sued for, and judgment was entered in accordance with the verdict. It appears from the bill of exceptions that the defendants offered to amend their plea by alleging that at the time of the execution of the contract sued on Woolard offered to make the necessary reduction on account of the two defective engines. The court refused to allow the amendment. The court certified that this offer to amend was made after the verdict had been directed; and in the bill of exceptions no assignment of error is made as to the amendment. The defendants in error have filed a motion to dismiss the writ of error. The motion to dismiss cannot be sustained. While no exception is taken to the disallowance of the amendment, and while the exception to the judgment is perhaps not technically specific, the assignment of error on the ruling of the court directing the verdict is sufficient to present for our consideration the error therein alleged to have been committed.

The first assignment of error is as follows: "To which ruling of the court directing the verdict, as aforesaid, the defendants hereby except and assign the same as error. Defendants contend that the court erred especially in directing attorney's fees sued for, such verdict being wholly unwarranted by the law and evidence under the pleadings in this case." We think this presents squarely the question as to whether the court erred in directing the verdict, instead of allowing the case to go to the jury. This may be treated as a general exception to the verdict. The assignment contains also a special exception with reference to the attorney's fees, which is good in form, though it is not well taken, because it appears from the record as certified by the presiding judge that the defense as to the attorney's fees was abandoned by the defendants. A writ of error will not be dismissed when the bill of exceptions contains one sufficient assignment of error, no matter how defective other assignments of error therein contained may be.

We do not think that the ruling of the court in directing a verdict in this case was error. Under the testimony of the defendants themselves as delivered by the defendant who purchased the entire outfit, no other verdict could legally have...