Camp v. Works., 30 Ga. App. 298

Camp v. Works.

30 Ga. App. 298 | Ga. Ct. App. | 1923

Jenkins, P. J.

(After stating the foregoing facts.) Tn Harder v. Garter, 97 Ga. 273 (23 S. E. 82), a rule of estoppel was announced, to the effect that, where one gives a note for the purchase-money of an article which is defective, with full knowledge of such defect, he will be held to have waived the defect, and cannot set it up in defense to an action on the note. This rule has been limited by the doctrine announced in Means v.Subers, 115 Ga. 371 (41 S. E. 633), and Moultrie Repair Co. v. Hill, 120 Ga. 730 (7) (48 S. E. 143), to cases where it is made to appear that at the time the note was given the maker had actual knowledge that the article was defective, or that prior to the giving of the note he had made actual inspection of the article, and the defects therein were of such a character as to be patent to the person making such actual examination. Whether the limitation just referred to applies in case of implied warranty, or only to cases where the purchaser has a right to depend upon an express warranty (see Civil Code of 1910, § 4135; Moultrie Repair Co. v. Hill, supra, 731 (1, 2); Bray v. Southern Iron Co., 28 Ga. App. 813, 113 S. E. 55), the doctrine originally set forth in Harder v. Garter, supra, would not control where the plea in effect sets forth that the note was executed on the faith of representations then made that the defects then known to the purchaser and then complained of would be rectified. Stamps v. Dawson Brothers Co.,, 26 Ga. App. 349 (2) (106 S. E. 195). Nor could the doctrine of estoppel have complete application so as to authorize the striking of the plea, where it appears that four of the ten sets of machinery, were shipped and delivered subsequent to the time that the note was executed.

*302• Where, however, a defense is expressly limited to a breach by the plaintiff of an implied warranty, resort can not be had to proof of a breach of an express warranty; this under the familiar rule that where a contract contains an express warranty, an implied warranty is excluded. See numerous cases cited in 11 Enc. Dig. Ga. .Eep. (Cum. Supp.), 447; 4 Stevens’ Dig. 3445, 3447. Words expressed in a contract descriptive of the particular character and detailed workmanship of the subject-matter of a sale must be taken as warranties. Miller v. Moore, 83 Ga. 684 (10 S. E. 360, 6 L. R. A. 674, 20 Am. St. Rep. 329); Americas Grocery Co. v. Brackett, 119 Ga. 489 (46 S. E. 657).’ Thus, the plea was defective in so far as it sought to set up a ground of defense under an implied warranty by showing that the details of construction failed to conform to the blue-prints furnished to the plaintiff under the terms of the contract. Even if the defendant had not expressly limited his defense to a breach of an implied warranty, he could not depend on those grounds after having failed or refused to attach the blue-prints and specifications to his answer in response to the special demurrer. The defense as pleaded'is good, however, to the extent that it offers to show that the machines were worthless on account of defective material having been employed in their construction. The rule that an express warranty excludes an implied warranty is absolute where the contract expressly declares that there shall be no other warranty than those expressed. Where the express warranty does not consist in a statement of the particular character or detailed workmanship of the article furnished, but seeks to express in terms the scope and extent of the guarantee, it might well be that in some cases that which is not thus expressly included should be held to have been impliedly excluded. But where the nature of the express warranty does not seek to cover the whole subject-matter of the sale, but consists merely in an agreement as to the particular character and detailed workmanship of the article sold, such an expressed warranty must be taken to refer only to those matters thus dealt with, and should not be construed to exclude the implied warranty, with which it does not conflict, that the material employed should be such as would render the finished product suited for the use intended. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (1), 467 et seq. (83 S. E. 138, *303L. R. A. 1915B, 900). The plea in no wise indicates that the grade and quality of the material to be used was covered by the express terms of the contract. If the evidence should develop that it did, a defense seeking to set up such a default under an implied warranty would not avail. The plea does not indicate that such a deficiency would -constitute a patent defect. This is a matter which is generally a question for the jury (Kronman v. Roush Produce Co., 3 Ga. App. 152 (2), 59 S. E. 320), in determining whether the rights of parties have been waived by acceptance of the goods, or by failure to include such a defect in the grounds originally stated for their rejection. See Cook v. Finch, 117 Ga. 541 (44 S. E. 95).

Judgment reversed.

Stephens and Bell, JJ., concur.