110 Ga. 850 | Ga. | 1900
The record discloses that Woods purchased from Ployd a buggy, giving therefor a promissory note which also embraced a mortgage upon the buggy. In this instrument was the following clause: “ It is expressly'understood and agreed that the property for which this-note is given, is sold without any warranty, expressed or implied, on the part of the seller, and the purchaser buys said property entirely upon his own judgment, waiving all defects, either patent or latent. The purchaser waives the implied warranty upon the part of the seller as contemplated in section 2651 of the Code of Georgia, and agrees not to plead failure of consideration or any other plea to an action that may he founded upon this note. ” Ployd made an affidavit in due form for the purpose of enforcing the mortgage lien created as above stated, and an execution issued thereon was duly levied. In resistance to this foreclosure, Woods filed an affidavit admitting the execution of the note, but setting up, in substance, the defense that the instrument in question was given for a buggy which the plaintiff falsely represented to be new, whereas it was an old buggy “fixed over and almost worthless.” The issue thus formed came on to be heard in the magistrate’s court, when the defendant amended his pleadings by alleging “ that the Plff. perpetrated a fraud on him in this, to wit: Plaintiff represented the buggy to be a new one, which was untrue, the buggy being an old one patched up and painted over, which this Deft, did not know at the time of the sale, and deceived this defendant with the paint on the buggy. The Plff. knew all these facts, and this Deft, did not know the defects in the old buggy. Deft, says that had he knew the trouble
Our conclusion is that the right result was reached in the magistrate’s court. We do not, however, predicate our decision; upon the idea that the defendant was cut off from making a defense because he contracted not to do so, but upon the ground, that the defense actually sought to be made was wholly without merit. The gist of it was, that although the defendant had freely and voluntarily signed the contract with a full knowledge' of its terms,— one of which was that he was buying the property “entirely upon his own judgment, waiving all defects, either patent or latent ” — ■ he was nevertheless misled and deceived by false representations made by the plaintiff pending the negotiations leading up to the purchase. Granting that, as matter .of fact, the plaintiff did knowingly make false representations and that the defendant really placed reliance thereon, it does not follow that, as matter of law, he was defrauded. It is certainly possible for one to purchase an article, taking all the chances as to its value or qualities; and if there ever was a case of this-kind, it is the one now before us. The defendant not only contracted as just indicated, but he expressly stipulated that the sale to him was “without any warranty, express Or implied, upon the part of the seller, ” and further agreed to waive “ the implied warranty upon the part of the seller as contemplated' in section 2651 of the Code of Georgia, ” then of force (now section 3555 of the Civil Code). It is to be noted that, under this- : section, the seller, “ unless expressly or from the nature of the-
As the magistrate was right in striking the defendant’s plea ■of fraud, it makes no difference upon what reason such action was based, and the superior court erred in setting aside the judgment of the justice’s court.
Judgment reversed.