19 Ga. App. 125 | Ga. Ct. App. | 1917
1. The plea sufficiently indicated that the guaranty as to the weights of the diamonds sold to the defendant was made before the purchase and not thereafter, and that the alleged false representations as to the weights induced the purchase; and the court did not err in overruling the demurrer thereto upon that and other grounds.
2. The fact that the purchaser afterwards gave notes for the remainder of the purchase-price then unpaid would not prevent the purchaser from setting up, by way of recoupment, a claim for damages based on an alleged deficiency in the weights of the diamonds purchased, since the damages arose out of the original contract of purchase, and not under any special conditions or stipulations contained in the simple promissory notes executed to close the original purchase-money account. The case of Dooley v. Gorman, 104 Ga. 767 (31 S. E. 203), is not in point, as the note sued upon in this case does not purport to set forth the entire contract between the parties, but only fixes in part the amount to be paid by the maker to the payee, and the date when one such payment shall be made.
3. According to the testimony in behalf of the defendant, the notes given to the plaintiff in settlement of the balance due on open account for the purchase-money of the diamonds were executed and delivered before the defendant had discovered, or there had been brought to its attention, any reason to investigate, and before it had a reasonable opportunity to. discover the breach of warranty on the part of the seller as to the weights of the diamonds purchased; and therefore the defendant was not estopped from setting up its claim for damages because of the giving of the notes.
4. The testimony was in sharp conflict, but there was evidence to sup