Springer v. Indianapolis Brewing Co.
| Decision Date | 17 August 1906 |
| Citation | 55 S.E. 53,126 Ga. 321 |
| Parties | SPRINGER v. INDIANAPOLIS BREWING CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where goods of a certain brand and quality were sold, and the buyer afterwards ordered another shipment of the same brand and quality, which order was accepted and the goods shipped thereon, the seller warranted the last shipment to be of equal qualitiy with the first. Haltiwanger v Tanner, 29 S.E. 965, 103 Ga. 314.
If after acceptance of the goods, the purchaser discovered that the quality was inferior to that warranted, he could plead partial failure of consideration to an action for the purchase price, and would be entitled to an abatement of the purchase price to the extent of the difference between the purchase price and the actual value of the goods.
An express warranty excludes an implied warranty; and in a suit to recover the purchase price of goods sold under an express warranty, with a plea of partial failure of consideration the issues presented are whether the goods delivered were of the quality warranted, and, if not, to what extent the purchase price is to be abated.
If there are defects in the goods delivered, and there is an express warranty, acceptance by the buyer with knowledge of such defects will amount to a waiver of the warranty. But, if the defects are not discovered until after acceptance, the buyer may plead such in abatement of the price.
The letters referred to in the motion for new trial were properly admitted in evidence.
Error from City Court of Columbus; J. L. Willis, Judge.
Action by the Indianapolis Brewing Company against F. H. Springer. Judgment for plaintiff. Defendant brings error. Reversed.
Where after acceptance of goods, the purchaser discovers that the quality is inferior to that warranted, he can plead partial failure of consideration to an action for the price, and will be entitled to an abatement of the price to the extent of the difference between the price and the actual value of the goods.
The plaintiff instituted a suit declaring upon an open account, and exhibiting a bill of particulars. The defendant by plea denied the indebtedness, for reasons stated, and set up a contract under which the goods were bought, claiming that the purchase was made by sample exhibited by the agent of the vendor, and therefore that there was an express warranty that the quality of the goods should be equal to that of the sample; that as a matter of fact they were not, and, because of the deficiency in that respect, the goods were not worth the contract price, for which reason the amount of the plaintiff's recovery should be correspondingly reduced. On the trial, the plaintiff introduced evidence proving the sale and delivery at the price stated, and that the defendant had ordered from the plaintiff three car loads of beer of a given grade and quality, known as the "Progress brand;" that one car load was shipped May 10, 1902, and the second was shipped July 19, 1902, but the third, which was ordered in May, 1903, was not shipped because of a failure to pay for the second. There was no evidence relative to the exhibition of any sample by the agent of the vendor. The beer in controversy was shipped in response to an order as follows: There was a letter acknowledging and accepting this order with the promise that the "car will go forward to-morrow." This is the whole contract relative to the subject-matter of this suit. The record discloses no other agreement with reference thereto. The car was shipped on July 19, 1902. The first shipment was saleable. The evidence is conflicting as to the second. On September 23d defendant wrote making complaint as to quality. Plaintiffs replied and asked for samples, which do not appear to have been furnished. After this complaint, promises of payment were made by letter, and also verbally to the agent of plaintiff, who called on defendant. After purchase of the second car, defendant entered a copartnership styled "Reed-Moschell Company," who conducted the business, and some of the correspondence was in the name of that copartnership. The jury found for the plaintiff. The defendant moved for a new trial, which was denied, and he excepted. In addition to the general grounds, the following other grounds were taken in the motion.
(1, 2) The court admitted in evidence certain letters signed Reed-Moschell Company, which were objected to on the ground that said company was altogether a different party from defendant.
(3) The court admitted in evidence a letter signed by plaintiff addressed to F. H. Springer & Co., which was objected to on the ground that it was not written to defendant or...
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