96 Ga. App. 434 | Ga. Ct. App. | 1957
1. Counsel for the defendant argues, in regard to the court’s rulings on the demurrers and to the order overruling the defendant’s objections to the plaintiff’s amendments, that the petition could not be amended by abandoning the contract first alleged and setting up another and different con
It is our opinion that the cause of action originally laid by the plaintiff was constant and consistent throughout the proceedings. The only change was that by amendment the amount for damages claimed was reduced. Such was an advantage to, and not harmful to the defendant. The court did not err in any of the rulings regarding the demurrers and objections.
2. We have set out the evidence somewhat in detail and find that it amply supports the verdict of the jury. The general grounds are not meritorious. The defendant’s motion for a judgment notwithstanding the verdict is not meritorious.
Special ground 3 assigns error because it is alleged that the court erred in giving the following charge to the jury: “Gentlemen, those are the express warranties, and in the opinion of the court, those warranties do not exclude what we know as the implied warranties, the implied warranties being those warranties which the law writes into each contract for the sale of chattels. The implied warranties are that the seller has valid title and right to sell, that the seller knows of no latent defects undisclosed, and that the thing sold is reasonably suited for the use intended. Those are the implied warranties which are applicable in the case.”
The defendant alleges that this excerpt was erroneous and injurious because it was not applicable to the issues in the case as formed by the pleadings and the evidence; that it was misleading to the jury in that it had no proper guide as to what liability rested on the defendant under the implied warranty and under the express warranty; that it had the effect of nullifying and destroying the defendant’s defense of express warranty by injecting the issue of implied warranty when such implied warranty was not applicable to the issues in the case as made by the pleadings and the evidence; and that such charge was erroneous and not sound as an abstract principle of law. Under the pleadings and the evidence of this case and when we consider the charge as a whole, this assignment of error is not meritorious. The court charged fully regarding the pleadings and the evidence. The following cases are not applicable under the pleadings and facts of the case at bar: Brandon & Co. v. Franklin & Co., 46 Ga. App. 303 (3) (167 S. E. 612); Frick Co. v. Smith, 70 Ga. App. 118 (4) (27 S. E. 2d 795) and Springer v. Indianapolis Brewing Co., 126 Ga. 321 (3) (55 S. E. 53).
The court did not err in any respect.
Judgment affirmed.