35 Ga. App. 478 | Ga. Ct. App. | 1926
W. B. Lewis, trading as Jasper Grocery Company, brought an action for damages against S. S. Boone, trading as Valdosta Stock Yards, alleging: (1) Defendant is a resident of Lowndes county. (3) Shortly prior to January 34, 1933, petitioner purchased from said defendant a carload of hogs, which he intended, as the defendant was then advised, to ship to the State of North Carolina, and there resell them for slaughter. (3) On said date, to wit, January 34, 1934, the defendant caused 193 hogs to be delivered to petitioner by H. J. Hall & Company at Sparks, Georgia, and they were there loaded in car MP 51613, and were immediately shipped to Frank Bullock & Company at Bocky Mount, North Carolina, to whom he had contracted to sell them. (4) Petitioner paid defendant for said hogs the sum of $1017.33, that being the agreed price. (5) The sale to petitioner was without any express warranty, but said hogs were purchased upon the
It is contended by counsel for plaintiff in error that the ease
If in the case at bar the disease was of such a nature that it was not known to the seller, there could be no recovery under the third clause. If a recovery could only be had under the second clause when there is a total failure of consideration, the plaintiff would, even though he had, as alleged, suffered material loss because of a partial failure of consideration, be without remedy under the second subsection of section 4135. Section 4136 reads: “A breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. It may be pleaded in abatement of the purchase money. If the sale be executory, it is a good reason for the purchaser to refuse to accept possession of the goods.” This court, in Bentley v. Rice, 27 Ga. App. 816 (3) (110 S. E. 26), held: “The-use of articles of jewelry for wearing apparel is not for purposes of utility alone, but is partly ornamental; and where such goods are sold under a contract of sale with
The next ground of the demurrer is that the petition fails to set out any legal measure of damages. The correct measure of damages in this ease is the difference between the price paid for the hogs and their actual value as reduced by their defective condition. Berry v. Shannon, 98 Ga. 459 (25 S. E. 503); Atkins v. Cobb, 56 Ga. 86; Badgett v. Broughton, 1 Ga. 591; Feagin v. Beasley, 23 Ga. 17. Fairly construed, the petition as amended alleged damages in accordance with this rule, and the court did not err in overruling the demurrer in this regard.
Expense properly and reasonably incurred by plaintiff in going to Atlanta in order to lessen the loss caused by the disease was a proper item of damages. Snowden v. Waterman, 105 Ga. 84 (4) (31 S. E. 110); Leitner v. Goodwin, 60 Ga. 149 (2); Feagin v. Beasley, supra.
The remaining grounds of the demurrer were not meritorious, and the court properly overruled them.
Judgment affirmed.