71 Ga. 470 | Ga. | 1884
Taking the latter part of this charge, which has been italicized, in connection with what immediately precedes it, we cannot coincide in the view which has been urged against it in argument here—that it expresses a decided opinion that plaintiffs did not warrant that the machine was suitable for transportation over the roads of the country, etc. We think all that was intended, and was, in fact, substantially said, was that the law did not require such a warranty, and consequently that it could not be implied therefrom. In this respect, the expression of the principle is not so clear and exact as it could have been made, and is, perhaps, not sufficiently guarded, but we cannot say that the jury did not understand it as it was evidently intended by the judge, and as it must impress anyone, when it is considered, not in detached parts, but as a whole.
A simple refusal of the request, without any charge upon an inapplicable principle, would have been the bet
This defence was not specially pleaded. No motion was made to non-suit the case at the close of plaintiff’s evidence, nor was any demurrer taken and urged on this distinct ground. The court below did not pass upon the question ; it would seem, therefore, that there is nothing here which this court can or ought to review.
In McDougald vs. Banks, 13 Ga., 451, this court held that, “ to take advantage of the first section of the statute of frauds, declaring parol leases void, it is necessary to plead it, unless the pleadings of the plaintiff show that his case is not within the exceptions to that statute.”
In this case, there was no plea or demurrer, no motion for a non-suit, no objection to testimony, and not even an intimation that a charge or ruling upon the subject was
Judgment reversed.