Jackson v. Langston & Crane

61 Ga. 392 | Ga. | 1878

Bleckley, Justice.

The implied warranty of the Code (section 2651) does not operate where the parties, by their contract, have ext pressly agreed upon a different warranty, whether it be more limited or more extensive. Here the parties shaped for themselves the warranty which suited their wishes. What can be more express than this language: “It is guaranteed to me as to its effect on crops only as to the analysis of the state inspector, as evidenced by his brand on each and every package; and I hereby accept the said analysis as indicated by said brand as a correct estimate of the commercial value of said fertilizer.” The inspector’s analysis was made the measure both of fertilizing power and commercial value, and the inspector’s brand was made the evidence of the analysis. If, therefore, the genuine brand of the inspector was on each and every package, and if the fertilizer had not been tampered with or adulterated after it passed through the inspector’s hands, the buyer received precisely what he purchased, and no breach of the seller’s warranty has occurred. In the absence of all fraud on the part of the seller, (and there is no evidence of any fraud in this case), the effect of such a warranty is to throw upon the buyer the risk of everything but the genuineness of the inspector’s brand. Whether the packages in fact had upon them the inspector’s brand, was a question for the jury. There ought to be no difficulty in drawing the distinction between this case and that in 60 Ga., 520. The mere affirmation that “ This fertilizer is sold under the inspection and analysis of Dr. A. Means, inspector at Savannah, and the Department of Agriculture at Atlanta,” is no exclusion of the implied warranty of the Code; but so to hold is not inconsistent with the proposition that the parties may exclude the implied warranty if they will. Hero they have done so,, as to the quality and commercial value of the fertilizer, though not, of course, as to title, and nothing we have said is to be understood as intimating that express warranty confined to quality, etc., would supersede the implied warranty in respect to title. We have no such thought.

2. There was enough evidence to justify the verdict. That part of it which was of doubtful admissibility was entirely immaterial to the real merits of the controversy. It could do no harm, and may now be ignored. The charge of the court was correct. •

Judgment affirmed.