16 Ga. App. 39 | Ga. Ct. App. | 1915
Burson sued Daniel on a note for the purchase-price of a sorrel mare. The note contains the following clause: “Said property is sold without any warranty, express or implied.” The defendant filed a plea denying any indebtedness on the note, and alleged both a failure of consideration and a mutual rescission of the contract sued on. The court, upon oral motion of counsel for the plaintiff, struck the plea and directed a verdict for the plaintiff. To this the defendant excepts.
1. We are of the opinion that the court erred in striking the plea and in directing the verdict for the plaintiff. After setting out certain defects in the animal purchased, the plea contained an
Any evidence tending to show that the mare was worthless or of a value unconscionably disproportionate to the sum stipulated in the note, while not admissible to establish a failure of consideration dependent upon a breach of warranty which the defendant had waived, may be considered by a jury as a circumstance corroborative of the defendant’s contention that there was a rescission.
Judgment reversed.