1 Ga. App. 363 | Ga. Ct. App. | 1907
Petition.
The plaintiff entered into a contract with the defendant to furnish him four wall eases for the sum of $3800. The cases were delivered and installed in the store of the defendant on April 31, 1903. The plaintiff has fully complied with its contract; 'the defendant has paid $3079.59, leaving due $730.41, besides interest, payment of which has been refused on demand.
Pleas.
The cases referred to were delivered and installed in the defendant’s store; but the petition does not set up the contract between the parties; the real contract is set up in paragraph five of the answer. The cases were not duly set up. The plaintiff did not fully comply with its contract and the defendant is not indebted in any sum. Demand for payment was made, and rightly refused.
And the remainder of the plea mentions many other items in respect to which a contract was not complied with; We do not think that to say a contract has been made, but has failed in any material or essential particular can be construed as an admission that the contract was fully complied with. It is possible for cases
The only objection offered at the time to the introduction of this testimony was that the statements were mere conclusions of the witness. This objection was made to the testimony as a whole; the court did,,not err in declining to rule all of it out. Part of suoh testimony is clearly a statement of facts. But even if it were all a conclusion of the witness, we do not think the court erred in overruling the objection, because the witness giving the testimony was, as appears from the evidence, an expert of skill and long experience in the construction of such jewelry cases, and therefore entitled to give his opinion for whatever the jury might think it worth. Civil Code, §2587. And further, it appears that the witness, Johnson, had supervised the construction of these eases and before expressing these opinions had already given all the necessary facts upon which he based his opinion, .and upon the statement of facts, even if he was not an expert, he was entitled to express an opinion, the weight of which was to be' determined by the jury upon consideration of the facts previously stated. Civil Code, §5285. Even if the statement, “They could not be made to work better,” be objectionable as being an opinion even beyond the limits of expert knowledge, a casual examination of the very voluminous evidence in this case*leads us to the conclusion that the introduction of this evidence could not have influenced the verdict. We think, however, there can be no doubt that the court admitted the evidence on the proof of the witness’s expert knowledge, and it is our opinion that there was no error in so holding.
Not infrequently a mere shade of difference determines whether the issue calls for the application of the doctrine of implied warranty or excludes it. In many cases in our experience the line of ' demarcation was very dim, and we think there can be cases in which as to different portions of even the same transaction the law of express warranty will control, so far as there has been express warranty, without excluding the application of an implied warranty to other portions of the contract. We are aware that this
The only complaint that plaintiff in error can make'is, that the court did not charge the jury that the company impliedly warranted that the manufactured cases would be suitable to the purposes for which he intended them. The judge did not so charge. In our opinion he was right in not charging as the plaintiff in error'insists that he should, for the reason that by the very nature of the transaction there could be no implied warranty. From the nature of the contract there could be no implied warranty of suitableness of purpose. Crankshaw did not go to the manufacturing company and purchase jewelry cases relying on its judgment. If he had done so, an implied warranty would have arisen. On the contrary, he employed the manufacturing company to make eases according to plans and specifications of his own; and when these jewelry cases were made according to Crankshaw’s plans and specifications, with good workmanship and proper materials, the company had complied with its contract, whether the cases did or did not meet the purposes of Crankshaw. If the company, by reason of its experience, had known that the specifications furnished by Crankshaw would not make a good jewelry case, it. could not have altered his plans and made a different jewelry case. This would have been a violation of its contract, and Crankshaw could well have replied, to the suggestion of superior knowledge and consequent action in pursuance therewith, that this was none of its concern. If the cases were made according to contract and his own plans, Crankshaw got what he bargained for, and whether the cases thereafter did not suit his purposes was wholly immaterial. To hold a manufacturer responsible for defects which he may know will arise from peculiarities of proportion or construction, because he knows the use for which the manufactured article is intended, and yet is powerless to prevent the defects, because he can not alter the plan, would be