111 Ga. 57 | Ga. | 1900
The plaintiff in error, W. H. Hairalson, brought a petition against J. R. N. Carson alleging, in substance, the following: Hairalson purchased from Carson certain sawmill machinery,-and gave for the same a negotiable promissory note, due on the 1st day of December, 1899. The instrument embracing the note also contained a mortgage on the property purchased. The defendant fraudulently represented to the plaintiff at the time of the sale that the machinery was in good condition, in first-class order, and would do good work; whereas it was very inferior in character, badly worn, “almost wholly worthless and of no value at all.” A portion •of the machinery belonged to one Bankston, to whom the plaintiff was compelled to surrender it. Upon inquiry, plaintiff ascertained that the rest of the machinery had been sold to the defendant by Redmond & Wilson, which firm “had a mortgage on it and a reservation of title until the same was paid for, and that the purchase-price is still due by the said Carson.” As soon as the plaintiff became apprised of these facts, he offered to rescind the contract, but Carson declined to do so. The pe
Now, what course was pursued by the plaintiff in the pres
, In the brief of counsel for the plaintiff in error he cited and relied upon the case of Willcox v. Ryals, 110 Ga., in which this court recognized and applied the rule laid down in 2 High, Inj. 1126, that: “The negotiation of commercial paper may be enjoined when it was obtained through fraudulent or improper conduct rendering it against conscience to enforce it, and when there is danger of its passing into the hands of innocent purchasers for valuable consideration and without notice, whereby the maker would be cut off from asserting his defense at law.” The difficulty is, however, that counsel signally failed to bring the present case within the operation of this eminently just and sound doctrine, and it is now too late for him to invoke the same in behalf of his client.
Judgment affirmed.