24 Ga. App. 646 | Ga. Ct. App. | 1920
Adams brought suit upon a promissory note given for the purchase-price of a mule, title to which was retained in Adams until payment of the note. Walker pleaded that he was sued on a retention-of-title note; that after the execution of said note and before it became due, and while the title to the mule for which the note was given was in the plaintiff, the mule died, without fault of the defendant, and that under the law the loss occasioned by the death of the mule fell upon the seller. Upon hearing the evidence the court directed a verdict for the defendant; to which the plaintiff excepted.
This brings up squarely for decision the question as to whether it was “otherwise agreed” in the contract, and involves a construction of that contract. The cardinal rule of construction is to ascertain the intention of the parties. Civil Code of 1910, § 4266. The whole contract should be looked to in arriving at the construction of any part; and words generally bear their usual and common signification. Id. § 4268. Section 4123 states the law invoked in this case, and is as follows: “Where property is sold and delivered, but title is not to pass until payment in full of the purchase-money, and the property is lost, damaged, or destroyed without the vendee’s fault, he is entitled to a rescission of the contract or to an abatement in the price, unless it is otherwise agreed in the contract of sale.” That portion of the contract material in this ease, and which will, for convenience, be hereinafter referred to as “the contract,” is as follows: “It is fully understood and agreed between the parties hereto that said S. N. Adams makes
When Adams stated that he made “no warranty, either express or implied,” he might have gone no further and been absolutely protected as to the condition of the mule at the time of the sale. However, he does go further, and particularly designates exactly those things he refuses to warrant, omitting other warranties from which he would have been released by his prior refusal to make any warranty whatsoever. Assuming, for the sake of the argument, that the parties did not know the legal effect of the clause, “makes no warranty, either express or implied,” is it not more reasonable to suppose that the subject of warranty would have been exhausted in the clause detailing the exact warranties which were refused, than that the parties should have attempted to set out the things not warranted, that they failed to set out all those intended, and that the clause under consideration, “and shall not be entitled to an'abatement of the amount of the note for any reason whatsoever,” was inserted to exclude all other warranties not specified in the “itemized statement” of warranties? In short, we think an analysis of the entire contract shows that the parties covered the subject of warranty as fully as they intended when they categorically set out those things that were not to be warranted, and that this last clause of the contract, employed as it is in a retention-of-title note, using words identical in meaning with those words employed in the latter part of code-section 4123 (that section employing the words “abatement in the price,” and the contract the words, “an abatement in the amount of this note”), was intended to make the loss of the animal fall upon the buyer rather than upon the title-holder, where the loss would ordinarily fall.
The adjudicated cases give, but little assistance in ascertaining the meaning of the contract under consideration. The decision in the case of Avery v. Midddebrooks, 142 Ga. 830 (83 S. E. 944), construes a retention-of-title contract wherein the buyers “guaranteed the sellers against any damage to the machinery by fire while in their possession, and that they would keep the machinery insured for at least oir half of the purchase-money for the benefit of the seller,” the court holding that “this constituted such a contract within the meaning of the Civil Code (1910), §
Judgment reversed.