11 Ga. App. 498 | Ga. Ct. App. | 1912
J. D. Erazier & Company brought suit against the Georgia Brokerage Company, to recover a certain sum alleged to be a rebate allowed on a car of corn, on account of its damaged condition and its failure to come up to sample, and to recover also for an alleged shortage in the weight of the corn. The defendant relied upon two defenses: (1) that the sale was made with the knowledge of the buyers that the defendant was acting therein simply as agent for other parties, and was not the seller; (2) that there was no guarantee of the quality of the corn. The plaintiff relied, for evidence of the guarantee, upon an agreement in reference to the corn, made, as the plaintiff contended, after the trade under the first contract had been rescinded. This rescission, and the existence of any second contract, were denied in toto by the defendant; and, under the evidence and the pleadings, this conflict presented a material issue in the case. As an inspection of the charge of the trial judge shows that the contention of the defendant as to this material point was not referred to, a new trial should have been granted. The contentions of both parties should be presented with