Wells v. Gress

• Decision Date: 14 August 1903
• Citation: 45 S.E. 418,118 Ga. 566
• Parties: WELLS. v. GRESS.
• Court: Georgia Supreme Court

45 S.E. 418

118 Ga. 566

WELLS.

v.GRESS.

Supreme Court of Georgia.

Aug. 14, 1903.

SALE—BREACH OF WARRANTY—COMMON LAW —PRESUMPTIONS—EVIDENCE— APPEAL—REVIEW.

1. In a suit for a breach of warranty of personal property, it is not error for the court to charge (Civ. Code 1895, § 3555) to the effect that in ordinary sales there is an implied warranty that the article sold is merchantable, and suitable for the use intended.

2. While the common law is presumed to be of force in most of the American states, if either party claims that the statute or common-law rule obtaining in such state is different from the law laid down in the Code, he must, by pleading, evidence, or a request to charge, call the attention of the court to such difference.

v 2. See Evidence, vol. 20, Cent. Dig. § 101.

3. In the case at bar, it seems that the law of Wisconsin as to warranty is substantially the same as that contained in Civ. Code 1805, § 3555.

4. The evidence objected to was admissible under the plea of failure of consideration.

5. The evidence for the defendant was sufficient to support a finding in his favor, and, even though that of the plaintiff was in its nature stronger and more satisfactory, we have no right to interfere with the verdict.

(Syllabus by the Court.)

Error from Superior Court, Wilcox County; B. D. Evans, Judge.

Action by E. Wells against G. V. Gress. Judgment for defendant, and plaintiff brings error. Affirmed.

Eldridge Cutts, for plaintiff in error.

Max E. Land and Hal Lawson, for defendant in error.

LAMAR, J. The plaintiff sold the defendant a formula and the exclusive right to manufacture a certain hair preparation. To a suit for the purchase money the defendant pleaded breach of warranty, and a total failure of consideration, in that the formula was utterly worthless. There was no demurrer to the plea. The defendant offered evidence to sustain his contention, and the plaintiff offered counter testimony to show that the formula, if followed, would produce an article suitable for the purpose intended. The court charged (Civ. Code 1895, § 3555) that in every sale of personal property the vendor impliedly warrants that the article sold is merchantable, and reasonably suited to the use intended. The plaintiff assigns this as error, on the ground that, as the sale was made in Wisconsin, the courts will presume, until the contrary is shown, that the common law was of force in that state, under which there was no implied warranty.

Neither by the pleadings nor by a request to charge was any question raised as to the law by which the case is to be governed. Thefact that the sale took place in Wisconsin only incidentally appears, and the attention of the court should certainly have been called to the matter before he could have been expected to raise the point himself, and determine that the case was to be governed by a rule different from that laid down in the Code; for though the common law is supposed to be of force in most of the American states (Craven v. Bates, 96 Ga. 80, 23 S. E. 202), the presumption does not necessarily stop there, and while there is conflict in the authorities, according to many cases, "the legal presumption is that the lex loci is the same as our own." Hill v. Wilker, 41 Ga. 453, 5 Am. Rep. 540; 13 Am. & Eng. Enc. L. 1060. Where either party claims a benefit under a foreign law, the statute must be pleaded and proved. Champion v. Wilson, 64 Ga. 184. But even if request or pleading had raised the question as to the sale being governed by the principles of the common law, the charge was not erroneous; for, where it is proper under the pleadings or evidence, the judge may, of his own motion, resort to the statutes and decisions of the sister state as to the law thereof. Chat. R. Co. v. Jackson, 86 Ga. 681, 13 S. E. 109; Barranger v. Baum, 103 Ga. 466, 30 S. E. 524, 68 Am. St. Rep. 113; Civ. Code 1895,...