19 Ga. App. 716 | Ga. Ct. App. | 1917
The International Harvester Company of America brought suit in the city court of Springfield against E. G. Morgan, as maker, and H. L. Elzey,. as guarantor, on three promissory notes for the purchase-price of one two-roll Deering shredder, specified in the notes. The answer of the defendants admitted the execution and delivery of the notes sued on, and that the plaintiff was entitled to recover as prayed, unless the defendants should sustain the defenses therein set forth, which were as follows: (1) That the notes represented the price of a shredder sold by the plaintiff to the defendant Morgan, and that when this machine
The plaintiff, in rebuttal, offered in evidence the following order and warranty, which had been signed about a month prior to the execution of the notes:
“Order for machine. To U. L. Elzey, Town Clyo, State Ga., twp. Clyo, County Effingham, State of Georgia, hereby orders subject to your approval and to all conditions of agreement and
“Order dated tíre 12th day of April, 1912. Approved at-April 13, 1912, by U. L. Elzey. Order taken by E. W. Satterwhite. Give each purchaser a duplicate of this order.”
On the back appears the following: “Warranty and agreement: The vendor hereby warrants the machine herein ordered to be well made, of good material, durable with proper care, and when properly operated to perform successfully the work for which it is designed. If, within one year from date of purchase, a part proves defective, the new part to replace defective one will be furnished at factory, on receipt of part showing defect. Keeping and continuing to use the machine without giving any notice of an alleged defect, or if defect has been remedied, shall constitute an unconditional acceptance of the machine and operate as full satisfaction of the warranty herein given. If upon trial with proper care the machine fails to work properly, the purchaser shall immediately give written notice to the vendor, stating wherein the machine fails, shall allow reasonable time for a competent man to be sent to put it in good order, and render necessary and friendly assistance to operate it. If the machine can not then be made to work well, the purchaser shall immediately return it to said vendor, and the price shall be refunded, which shall constitute a settlement in full of the transaction. This express warranty excludes all implied warranties, and none has authority to change or modify this warranty and agreement. -This order is not subject to countermand, and the receipt of a copy of the entire agreement is hereby acknowledged by the purchaser. It is expressly agreed that the title to the property herein ordered shall not pass to the purchaser until full payment therefor shall, have been made, whether notes have been given for the purchase-price thereof or not.”
It is the contention of counsel for the plaintiff thát the court erred, (1) in excluding from evidence the order given for the purchase of the shredder, containing the express warranty gov-' erning the sale, and (2) in allowing the defendants to introduce testimony showing an express verbal warranty of the machine at the time of its purchase. The suit was one.in simple form on promissory notes which were unconditional and unambiguous. Neither the original petition nor any amendment offered makes any reference to the other written contract or agreement between the parties, containing the express and limited warranty. The defendants’ plea admitted the execution of the notes, pleaded failure of consideration, and sought affirmative relief against the plaintiff; and it is contended by the defendants that the warranty as limited by the written instrument, not having been originally set forth in the petition, nor having been pleaded, by amendment after the filing of the defendants’ answer, was properly excluded from the evidence. It is rightly conceded by the defendants that where, in the sale of machinery, there is an express warranty as to quality, and by the terms of the warranty liability of the seller is predicated upon conditions which must be performed by the buyer, the seller will not be held liable on the warranty thus limited, unless the buyer complies with the conditions therein set forth. See International Harvester Co. v. Dillon, 126 Ga. 672, 675 (55 S. E. 1034); Brooks Lumber Co. v. Case &c. Co., 136 Ga. 754, 755 (72 S. E. 40); McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Case Threshing Machine Co. v. Cook, 7 Ga. App. 631, 635 (57 S. E. 890). It is now settled in this State that the maker of a promissory note, which recites that its consideration is the purchase of described personal property, but does not purport to integrate the sale contract, may, in defense to a suit on
It is clear that the notes sued upon, being complete and unconditional in form, were sufficient in themselves to form the basis of a suit; but whether, upon the filing of the defendants’ plea admitting liability subject to the defense set up therein, in which also affirmative relief was sought against the plaintiff, it became necessarily incumbent upon the plaintiff to plead the terms of the written warranty, relied upon by it as a part of the contract of sale, is a question which to our minds is not altogether without difficulty, and is one upon which we have been unable to find di
The case of International Harvester Co. v. Dillon, supra, was a suit upon notes, and presented a like defense under a contract of sale identical in the contract in the case at bar; and Avhile the rule therein 'announced, as already indicated, effectively disposes of the right to plead a breach of warranty unless the terms and provisions of the warranty are substantially complied with on the part of the defendant, still that case, as reported, does not disclose, nor does the original record therein disclose, that objection was made to the introduction of the order containing the expressly limited warranty. It may be remarked, howeArer, that noAvhere in the opinion rendered in that case is it intimated that if a timely objection had been urged to the introduction of the order, the decision rendered might have been different. In Case Threshing Machine Co. v. Cook, supra, we find no light upon the exact point raised, it not being indicated there whether the order Avas declared upon, or whether any objection was made to its introduction.
By section 5789 of the Civil Code of 1910 it is provided that all contemporaneous writings are admissible to explain each other; and it is not there intimated that in order for such to be admitted
We are therefore of the opinion that the 'court erred in excluding the evidence embraced in the order of purchase, and that the plaintiff is accordingly entitled to a new trial under his motion as made.
Judgment reversed.