8 Ga. App. 67 | Ga. Ct. App. | 1910
T. L. Langston & Co. brought suit against the R.C. Neely Company for $750 principal, interest on $2,500 from October 1, 1907, to July 2, 1908 (tvlien payment of $1,750 was alleged to have been made), and interest' on $750 from July 2, 1908, forward. The plaintiffs attached tp their petition a written contract, embodying stipulations concerning the purchase of 2,000 ffftv-yard rolls of new two-pound bagging, which was signed by both parties, and also a statement of account. The defendants in their answer admitted the. receipt of the bagging in question, and, although they insisted that it was defective in several respects and did not conform to the express warranty of the contract, they nevertheless admitted that for reasons satisfactory to themselves, they
The verdict was authorized by the evidence and is sustained by law. The rule in regard to the recovery of pa3>ments voluntarily made has no application to the case; because the contract was an entire contract. It is immaterial that'the first shipments were closed by notes which were afterwards paid. Of course, as to that portion of the bagging which they accepted with full knowledge of its defects, the defendants, under the circumstances stated in the record, waived all right to rely upon the express warranty, but as to those shipments or that portion of the bagging which they received and accepted before tl^ knew there had been a breach of the express warranty, there can be no question upon this point. The defendants would have the right to recover whatever might be tlio difference between the market price of the bagging that they bought and the bagging that was shipped to them. The acceptance of the shipment would not imply a waiver of the express warranty. Tn fact they would have the right to rely upon the express warranty even if they accepted the shipment, unless it was clear that they intended to waive it. Any payments they may have made, even though it happened that the payments amounted exactly to the contract price of the first three shipments, if the contract is an entire contract, are to be treated as payments merely upon the gross amount of the contract; and if payment was made under such circumstances as appear in this record (the defendants having given