City of Moultrie v. Schofield's Sons Co.
65 S.E. 315
Ga. Ct. App.
1909
Check Treatment
Bussell, J.

(After stating the foregoing facts.)

The court properly sustained the demurrer to the original answer and to the amendments thereto. The first amendment, denying the authority of the mayor to sign the name of the city to the note, was inconsistent with the distinct allegation and admission of the defendant in the second рaragraph of the original answer, to the effect that the execution of the note by the defendant was admitted. Furthermore, in sеveral paragraphs of the original answer, it is averred that J. F. Monk executed the contract and the note as the representative of the city and by its authority. It is, of ■ course, well settled that the defendant has a right to file as many inconsistent pleas as he deems necessary. Civil Code, §5052; Western & Atlantic R. Co. v. Pitts, 79 Ga. 536 (4 S. E. 921). But a suitor may always take advantage of the admissions of his adversary, and by his solemn admission in judicio a pаrty is bound, and consequently, “where a defendant, in his answer to a petition filed in orderly and distinct paragraphs as required by statute, denies only the facts alleged in two paragraphs of the petition, ‍​​‌‌​​‌​​​​​​​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​‌​‌​‍and does not undertake to deny other allegations in the petition which are entirely inconsistent with the truth of the denial set up in the answer, and the plaintiff moves to strike the answer on this ground, it is not error for the court to strike the answer after giving the defendant ample opportunity to amend the same.” Burns v. Condon, 108 Ga. 794 (33 S. E. 907). Or, as held by this court, in Bedingfield v. Bates, 2 Ga. App. 107, 110 (58 S. E. 320), this denial of authority being inconsistent with the facts admitted, there was no error in striking that portion of the defendant’s plea on demurrer.. In Williams Mfg. Co. v. Warner Refining Co., 125 Ga. 411 (54 S. E. 95), the Supreme Court said: “The defendant could not both admit and deny the allegation of its indebtness to the plaintiff on the account ‍​​‌‌​​‌​​​​​​​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​‌​‌​‍sued on; and as its pleadings are to be taken more strongly ■against it, it is the admission, and not the denial which must prevail.”

*468The defendant had the right to plead non est factum by way ci amendment, after the first term (Hayden v. Atlanta Cotton Factory, 61 Ga. 345, citing Stanton v. Burge, 34 Ga. 455; Aiken v. Bartow Co., 54 Ga. 70; Cann v. Newhouse, 60 Ga. 50), provided there was enough to amend by. For this.reason we apprehend that the trial judge did not strike the plеa of non est factum upon the ground that it came too late, but rather upon the other ground of the demurrer, in which it was insisted that the defendant’s admission of its execution of the note precluded it from setting up that the execution of the note was not its act nor authorized by it, especially when from the other facts alleged in the plea it was apparent that the city had fully ratified the exеcution of the ‍​​‌‌​​‌​​​​​​​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​‌​‌​‍note. The plea of recoupment itself was ratification. Without reference to the allegations of the original answer, the amendment was unintelligible; and if considered in connection with the original answer, it in no wise negatived the allegatiоn that the mayor purchased the boiler in question, and that the city received it and used it, and relied upon the contract made by thе city as a defense. The defendant could not rely upon a contract pleaded by it as a defense, and at the same time deny the execution of the contract.

2. The controlling question in the case is whether or not, in view of the contract set forth аbove, the defendant was precluded from relying on any warranty other than that contained therein, to wit: the identity of the article purchased and its conformity to the description contained in the contract, and that it was of first class material and workmanship and capable of performing all the functions for which it was reasonably suited. If so, the demurrer to those parts of the original answеr and the amendments which seek to set up the breach of an implied warranty that the boiler would develop 150 horse-power is wеll taken. “An express warranty may be created as a part of a contract of sale, by the use- of such terms of descriptiоn of the article sold as preclude any danger of mistaking or confusing that article with any other. An express warranty is exclusive of all warranties arising by implication.” DeLoach Mill Mfg. Co. v. Tutweiler Co., 2 Ga. App. 493 (58 S. E. 790). “If an order be given to a manufacturer or dealer for a specific article of a known and ‍​​‌‌​​‌​​​​​​​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​‌​‌​‍recognized kind and description, and if the defined and described thing be actually *469supplied, there is no implied warranty that it will answer the рurpose for which it is intended to be used. The only implied warranty or condition of the contract is that it will conform to the description and be of good workmanship and material.” Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 364 (12), (58 S. E. 222); See also Hawley Down Draft Furnace Co. v. Van Winkle Co., 4 Ga. App. 85 (60 S. E. 1008); Fain v. Ennis, 4 Ga. App. 716 (62 S. E. 466). As was held in the Hawley ease, supra, “When a known, definitely described article is purchased, the very terms оf description used are, generally speaking, so far express warranties as to the kind of article to be supplied, that no imрlied warranty of its fitness for any particular use intended by the buyer arises, though the seller may be cognizant of the particular use intendеd.” The boiler which is the subject-matter of this controversy was fully and definitely described ‍​​‌‌​​‌​​​​​​​‌​​‌​‌‌​‌​​‌‌‌​​‌​‌‌‌‌‌​‌‌‌​​​‌​‌​‍in the contract, and there is no contention that thе boiler furnished by the plaintiff varied in any particular from the descriptions and specifications enumerated, and therefore thе plaintiff is precluded from relying on an implied warranty that the boiler would develop 150 horse-power, especially in view of the stipulation in'the contract that the warranties therein contained were exhaustive of all the warranties made by either pаrty.

3. The plea alleging that'the defendant was induced to sign the note and the contract because of fraudulent representаtions was properly stricken. This plea consisted for the most part of conclusions of the pleader, and did not set forth spеcific acts constituting fraud, or facts justifying the conclusion pleaded See Carroll v. Hutchinson, 2 Ga. App. 60 (58 S. E. 309).

4. The plea of failure of consideration was also properly stricken on demurrer. It appeared from the original answer and the other pleadings in the case that the defendant received the boiler, kept it, and used it for more than thirty days without written complaint, and, having agreed in its contract that this conduct should amount to a final acceptance of the engine and a waiver of this defense, the defendant is estoppеd from relying thereon. International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034).

5. After the demurrers had been disposed of, the answer of the defendant amounted to nothing more than an admission that the note had been executed by it, that the identical article which •was the consideration therefor had been supplied, thаt all defects *470therein had been waived, and that proper notice authorizing the recovery of attorney’s fees had been given. It was therefore within the power of the court to render judgment in favor of the plaintiff for principal, interest, and attorne3'’s fees.

Judgment affirmed.