35 Ga. App. 289 | Ga. Ct. App. | 1926
J. B. Colt Company filed suit in the city court of Madison against T. A. Mallory for $205 alleged to be due un
If a sale of personal property has been executed, a breach of warranty will not annul it, but will give the purchaser a right to damages. Hutchinson Lumber Co. v. Dickerson, 127 Ga. 328 (3) (56 S. E. 491). The measure of damages in such a case ordinarily is the difference between the contract price of the goods ordered and the market price, at the time and place of delivery, of those delivered. Americus Grocery Co. v. Brackett, 119 Ga. 489 (5) (46 S. E. 657). The defendant’s plea of total failure of consideration was not sustained unless the evidence showed that the plant was totally worthless, and the burden of proof as to this issue was of course upon the defendant. Counsel for plaintiff in error takes the position that the defendant pleaded a breach of an express warranty only, and that the evidence failed to show such
The plaintiff excepted also to certain portions of the court’s charge, upon the ground that they permitted the jury to find in the defendant’s favor on the theory of the breach of other express warranties than the one alleged in the answer to have been breached. When the charge is considered as a whole, the excerpts complained of are .not fairly subject to the criticism made; but since the sale was executed, it was error to instruct the jury that a breach of the warranty would relieve the defendant of the debt, and that “if there has been a breach of that express warranty, resulting in a loss to the defendant, then that would amount to a cancellation of that contract and the defendant would not be due to pay it, and you would find in favor of the defendant in this
The court erred in overruling the plaintiff’s motion for a new trial.
Judgment reversed.