85 Ga. 694 | Ga. | 1890
Butts sued Hornsby on a promissory note for two hundred dollars. Hornsby pleaded a total failure of consideration, alleging that the note was given for the county right in Dougherty and Mitchell counties of a patented cotton-planter; and that the plaintiff, as a part of the contract, and as part of the consideration thereof, agreed to furnish him within a reasonable time a perfect and complete model of said planter, and further agreed to arrange for a place where he could have the same manufactured, all of which the plaintiff failed and refused to do. After the evidence was closed, the court instructed the jury to find a verdict for the plaintiff. Defendant made a motion for a new trial upon the grounds mentioned therein, which was overruled by the court, and he excepted.
¥e think the court did right in directing the jury to return a verdict in favor of the plaintiff’, under the facts of this ease. The defendant failed to sustain his plea of total failure of consideration by evidence. It is true that he testified that the right was worth nothing to him, but he does not show that it was of no value to any one else, or of no market value. In order to sustain a plea of total failure of consideration, the evidence should have shown that the patent right was entirely worthless. Instead of showing this, defendant says in his testimony that the cotton-planter patented was a good one. He made no offer to surrender to the seller the right which he purchased to make these planters in the counties named, but kept the right, and now wishes to avoid the payment of any amount therefor. In the case of Smith v. Hightower, 76 Ga. 629, relied on by the counsel for the plaintiff in error, the plea and the evidence showed that the machines patented were utterly worthless and unsuited for the purpose for which they were made, and this court held that the exclusive right