135 Ga. 104 | Ga. | 1910
Certain notes were given for the purchase-money of an engine known as an International Gas or Gasoline Engine bought of the payee by the maker of the notes. In the contract of purchase a written guarantee by the seller provided: “The International Gas or Gasoline Engines are warranted to be well made, of good material, and durable with ' proper care. The rate horse-power is guaranteed on every International engine when leaving the factory; the brake test showing a greater horse-power than rated. ' The International engines are warranted for one year from date of purchase. If within this time a part prove defective, a new part will be furnished at our factory on receipt of part showing defect.” Suit was brought on the notes by the payee, and the defendant pleaded a breach of the warranty and a failure of consideration. Held:
2. A witness in behalf of the defendant, after having testified that the horse-power of his engine was 9-7/10, testified as follows: “I do not know and can not swear what horse-power my engine is, only from trying -it, and comparing it with other engines. 1 have known eight or ten different ones, and am only comparing it with other engines, and I did not know the horse-power of those engines with which I compared it, only by what they claimed.” It was error to admit such testimony, over the objection, of the plaintiff that it was hearsay.
3. It was error to admit testimony of a witness for'the defendant, “I don’t know anything about gasoline engines. From my knowledge of machinery and the usage and custom in this country, and from my knowledge of machinery in general and my past experience, I am satisfied that a ten horse-power engine would pull this seventy-saw gin of Mr. Adams,” over objection of the plaintiff “that the evidence was opinionative; that the witness had not qualified as an expert, and confessed ignorance of gasoline engines, and did not know the-conditions under which the gin testified concerning was operated by defendant.”
4. It was error to admit testimony of a witness for defendant. “A ten horse-power engine would pull that [defendant’s] gin. This is not a ten horse-power engine [referring to the engine in dispute]. If I shall judge by the work it was doing, not that 1 am qualified to say it was not, but according- to my judgment it is not. 1 am not an expert as to machinery. It is a fact that my testimony about this horse-power is only by getting comparison from what 1 have seen of other engines that were said to be of a certain horse-power. Therefore I am judging that horse-power by what they told me, and not by actual measurement made by myself,” over objection of the plaintiff “that said evidence was hearsay, based upon statements made by others as to horsepower of other engines used in comparison of work done. That said evidence was opinionative, and witness had not qualified as an expert.”
5. It was error to admit testimony of a witness for the defendant, “If this engine [the engine in dispute] reached us [the defendant,- witness’s father, and him] in the same condition that it was when it left the factory, I will swear that it would not under the brake test show a greater horse-power than ten horse-power, when it left the factory. I only swear to that fact by comparison with other engines. I know what other engines are-rated at; what their-horse-power is rated at. That is what somebody said. All the testimony that 1 gave to Mr. Boykin’s [counsel for defendant] questions has been based upon comparison with other engines which are said to have a certain horsepower,” over objection of the plaintiff, “because the evidence of the
Houser v. Lithgow Mfg. Co., 84 Ga. 333; Harder v. Carter, 94 Ga. 482; Regensburg v. Notestine, 2 Ind. App. 97 (27 N. E. 108); Byrne v. Hibernia Bank, 31 La. 81; Baird v. New York, 96 N. Y. 567; Cole v. Champlain Transfer Co., 26 Vt. 87; Trippe v. McLain, 87 Ga. 536; Fenwick v. Bowling, 50 Mo. App. 516; Sebring v. Hazard, 128 Mich. 330; Flannery v. Kane, 102 Va. 547; Green v. Babcock Lumber Co., 130 Ga. 469; L. & N. R. Co. v. Barnwell, 131 Ga. 792; Civil Code, §§ 5049, 5201; Rome Furnace Co. v. Patterson, 120 Ga. 522, 523; Babcock Lumber Co. v. Johnson, 120 Ga. 1034; Turley V. Atlanta &c. Ry. Co., 127 Ga. 594; Bullard v. Brewer,
7. In view of the entire record, there was no error requiring a new trial with respect to the matters complained of in any of the other assignments of error. Judgment reversed.
Sizemore v. Woolard, 3 Ga. App. 264; Civil Code, §§ 3555, 5128, 5825; Elgin Jewelry Co. v. Estes, 122 Ga. 807; White v. Mercantile Jewelry Co., 6 Ga. App. 860; Moultrie Repair Co. v. Hill, 120 Ga. 730; Means v. Subers, 115 Ga. 371; Southern Ry. Co. v. Ward, 133 Ga. 21; Id. 115 Ga. 624; Southern Mutual Ins. Co. v. Hudson, 113 Ga. 439; Central Railway Co. v. Bond, 111 Ga. 13; Herndon v. State, 111 Ga. 179; Atlanta Con. St. Ry. Co. v. Bagwell, 107 Ga. 157; Augusta &c. Railway Co. v. Dorsey, 68 Ga. 228; Central Railroad v. Coggins, 73 Ga. 689; Samson Exp. & Op. Ev. rule 63, 505; Cavendish v. Troy, 41 Vt. 107; 1 Gr. Ev. (16th ed.) 549; Galceran v. Noble, 66 Ga. 367; Hirsch v. Oliver, 91 Ga. 555.