46 Ga. App. 303 | Ga. Ct. App. | 1933
H. M. Franklin & Company, purchaser, brought suit against D. S. Brandon & Company, seller, alleging that plaintiff bought a certain quantity of beans from the defendant company. They contended that these beans were purchased on the basis of a sample submitted to them by D. S. Brandon & Company, and upon the express warranty that the beans bought and to be shipped were the same as the sample submitted and of a like quality. The purchase-price was to be $3.75 per bushel, and the amount shipped was 110 bushels. They were shipped order-notify with bill of lading attached, and when they came the purchaser paid the draft, amounting to $412.50, and freight $8.58, and took the beans from the railroad company. The plaintiff alleged that upon an examination of the beans actually shipped it found them to be not of like quality and character as the beans purchased and that they
This is not a suit for a rescission, but is a suit for damages for the alleged breach of an express warranty. A breach of warranty, express or implied, does not annul the sale if executed, but gives the purchaser a right to damages. If the beans delivered were not equal in quality and kind to the sample on which they were bought, and yet it should appear that they were delivered to and paid for by the purchaser, the purchaser might have elected to sue for a rescission of the contract and asked for the full purchase-price to be returned to him and that the beans be returned to the seller and the parties placed in statu quo. This was not done, but an election was made to sue for a breach of the warranty. If the purchaser could have shown that the property delivered was totally worthless as alleged, he would have been entitled to recover the full amount of the purchase-price with interest. The allegations and the proof show that these beans had “some value,” and that as a matter of fact 30 bushels of them had been sold for $2.40 per
The court having correctly given in charge the law with respect to the measure of damages, and the evidence having disclosed that the beans, the subject-matter of the suit, were of some value, the verdict for the full purchase-price was contrary to law and without evidence to support it, and the court erred in overruling the motion for a new trial.
Judgment reversed.