124 Ga. 1045 | Ga. | 1906
The Equitable Manufacturing Company brought suit against Biggers for the price of a lot of jewelry which he had bought from the plaintiff under the terms of a written contract which was attached to the petition. The contract contained the following stipulation: “This sale is made under inducements and representations herein expressed, and no others. The purchaser hereby waives all right to claim failure of consideration or goods are not like sample or not according to order, unless he has exhausted the terms of warranty and exchange.” And the terms of warranty and exchange were as follows: “Any jewelry in this assortment failing to wear satisfactorily will be duplicated free of charge, if returned to us within five years. Jewelry can be exchanged for new jewelry in plated, filled, or solid gold, any time within twelve months from date of invoice.” The defendant pleaded
The plea of failure of consideration was, in substance, as follows: that within a reasonable time after the goods were received by the defendant he discovered that they were not merchantable, “and defendant notified the said plaintiff and proposed to ship them back and pay the expenses of so doing, but this was refused by the plaintiff. Said goods soon tarnished, and defendant notified the plaintiff as above set out, but they refused to take them back. Defendant returned some of them, but the goods sent him in place of the ones returned were worse, if possible, than the others. Defendant had no opportunity to send any others back, as the said plaintiff was so busy in trying to get the negotiable notes from this defendant, so, as defendant charges and believes, that it might place them in the hands of innocent purchasers to carry out its plan to defraud this defendant; that when defendant refused to give negotiable notes upon discovering said fraud, that suit was brought on said contract and all opportunities to carry out any further return or exchange of goods were cut off, even if this defendant had been under any obligation to do so.” The amended.plea was stricken and the jury instructed to return a verdict in favor of the plaintiff; to which orders of the court the defendant excepted.
Judgment reversed.