2 Ga. App. 493 | Ga. Ct. App. | 1907
The hill of exceptions calls for a review of the judgment of the lower court in striking the fourth' and fifth paragraphs of the defendant’s answer and in refusing a new trial. The paragraphs which were stricken (exceptions being taken pendente lite) were as follows:
“4. For further plea in this behalf, this defendant says, that on February 6th, 1904, this defendant purchased from the plaintiff, through its agents and brokers, Rogers, Brown & Co., one hundred and twenty-five tons of Standard Alabama Number 2. Foundry Pig Iron at the price of $10.00 per ton of 2240 lbs., f. o. b. cars furnace, Birmingham, Alabama; and on the same day, this defendant purchased from plaintiff, through its said agents and brokers, one hundred and twenty-five tons of Standard Alabama Number 1 Soft Pig Iron at the price of $10.50 per ton, 2240 lbs., f. o. b. furnace, Birmingham, Alabama. The amount mentioned in plaintiff’s petition was made and contracted by defendant solely for and on account of said iron, so sold and to be delivered to it by plaintiff, and without any other consideration therefor. Said goods were purchased by defendant, as plaintiff then well knew, for the purpose of being manufactured by this defendant at the foundry into various castings used by this defendant in machines made and manufactured by it in its factory in the city of Atlanta; and plaintiff, as a part of the contract of sale and consideration of said account) impliedly warranted and represented that said goods were fit, proper, and reasonably suited for such purposes. Defendant accepted and purchased said goods for the purpose of manufacturing the same into castings for machines so made and manufactured by it at its said factory, trusting in said representations and warranty of plaintiff, as plaintiff well knew. Said iron was not fit for said purpose, and was not reasonably suited therefor, the same being dirty iron and containing too little silicon and too much graphitic carbon, and the said iron has always been and is altogether useless and worthless to this defendant.
“5. For further plea in this behalf, this defendant sa3rs that it began using said iron in its said foundry in making said castings, on or about May 15, 1904. The output of its foundry was thirteen tons per diem. The necessary cost and expense to this defendant*495 of making each, day’s output was $100.00. By reason of said iron, so sold and delivered by plaintiff to defendant, and so used by it in its foundry in making eastings as aforesaid, being dirty nor fit and reasonably suited for the purpose,of being, moulded, into said castings, the defendant buying said iron, from the plaintiff for the said purpose, and the plaintiff well knowing, that the- defendant purchased it for said purpose, one third of -said output was absolutely worthless and a total waste in the foundry, -whereby this defendant sustained a daily loss of $33.33 1-3 for the period -of thirty days, making a total loss to thi^ defendant of $1,000:00. This defendant was put to this necessary.expense and loss in attempting to use said.iron for the purpose,aforesaid, and,for the purpose for which the same was bought, and before this defendant knew that the defects in said castings were .due to the inferior quality of said iron. -Said loss- and damage to this defendant arise, naturally and according to the usual course of things, from the ■failure of the plaintiff to deliver to this defendant the iron which it purchased from the plaintiff, and such as the parties contemplated when such contract was made, as the-probable result of its breach. • Said loss and 'expense in attempting to use said iron and in converting the same into castings was due solely and directly to -said breach of plaintiff’s- contract to furnish to this defendant Standard Alabama Number 2 Foundry Pig Iron and Standard Alabama Number 1 Soft Pig Iron reasonably suited for the purpose aforesaid, for which this defendant purchased the same. This defendant recoups said loss and damage against the account of the plaintiff sued on in this case.”
The effect of the judge’s ruling in striking paragraph four was & holding that the contract was one of express warranty and therefore excluded any implied warranty. The fifth paragraph was stricken because, in the judgment of the court, the defend.ant’s damages, if any, were not to be measured by the rule which ■defendant was endeavoring to apply, if indeed they were not too :remote for recovery at all. '
We have no difficulty in sustaining the judgment of the lower ■court in striking paragraph four of the answer. Alabama Iron No. 1 Soft, and Alabama No. 2 Foundry, are as- apt terms of •description for two grades of iron, — as distinctive and as well -.understood by those engaged in the iron business, as the different
If the defendant had purchased 175 tons of iron, the law would have implied that it was merchantable and reasonably suited for all the purposes for which it was intended. Civil Code, §3555-But when the buyer'specified that he wanted Standard Alabama. No. 1 Soft Pig Iron and Standard No. 2 Foundry Pig Iron, the seller expressly warranted that the iron to be delivered would be those two grades of iron and no other, and the presence of the express warranty excluded any implied warranty whatsoever. The-very particularity of description created an express warranty. The-
Standard Alabama No. 1 Soft Pig Iron- and Standard Alabama No. 2 Foundry Pig Iron were what the seller contracted to deliver and the purchaser to pay for. Standard Alabama No. 1 Soft Pig Iron is determined by fracture and inspection. The only question, then, that could arise was, was the iron that the DeLoaeh mills received Standard No. 1 and Foundry No. 2?
The court was right in striking the fourth paragraph of the answer, and we think the fifth paragraph would go with it; for, even if the damages sought are not too remote, the measure of damages which could be recouped would be the- difference between the contract price of the iron ordered and the market price of the iron delivered when it was delivered at Atlanta.
In view of the defendant’s admissions, it is profitless to discuss any of the grounds of error insisted upon in the motion, except those which pertain to the admission or exclusion of evidence which would illustrate the issue as to whether the iron ordered was that purchased. Under the admissions of the defendant the verdict rendered was inevitable, unless the defendant proved that the iron delivered was not Standard Alabama No. 1, and Standard Alabama No. 2, Foundry; and this it failed to do.
The admission to entitle to open and conclude is contained in paragraph three of defendant’s amended answer, and is as follows: “This defendant admits the purchase of the iron for the recovery of the price of which this suit is brought, from the plaintiff at the price set out in said petition, its delivery to this defendant, the
In the first and second grounds of the amendment to the motion it is insisted that the court erred in refusing to let a witness testify" that Standard Alabama No. 1 and Standard Alabama No. 2 iron had been used in the same way as the iron bought from plaintiff, and made good castings, and that the iron bought from plaintiff did not make good castings. This testimony was addressed to the point i-n issue, whether the iron delivered was the iron bought; and had we been presiding, we think we should have allowed the testimony. But we are not prepared to hold that the judge erred in rejecting this testimony of experiment, especially in view of the admission of a prima facie case by the defendant and the further fact that the defendant had used all of the iron in its business. The admission of evidence of experiment, as held by this court in Hudson v. Atlanta & West Point R. Co., ante, 352, 58 S. E. 500, is a matter peculiarly within the discretion of the trial judge; and this discretion will not be interfered with unless it be apparent that it has been abused.
In our view of this case a discussion of the remaining grounds of the motion would be profitless. The errors assigned would not warrant a new trial. The verdict was right and should not be set aside. Under the admissions of the defendant a verdict in favor of the plaintiff was inevitable. Thé turning point in the case was, . whether die contract of sale included an express warranty, or did
Even if the trial court had been in error in holding that the implied warranty of suitableness was excluded by the express warranty, still the judge did not err in refusing a new trial, because all implied warranties could well be deemed to have been waived by the defendant, who, instead of rejecting the iron, used it after full opportunity to examine it and ascertain whether it was merchantable and suited for the. purposes intended or not. Henderson v. Milling Co., supra, Judgment affirmed. .