Lockett v. Rawlins

13 Ga. App. 52 | Ga. Ct. App. | 1913

Hill, C. J.

(After stating the facts.) We think the direction of a verdict for the plaintiff under this testimony was unauthorized. The case should have been submitted to the jury. The general rule is that the giving or renewal of a note, with knowledge of defects, constitutes a waiver of such defects or of any breach' of warranty arising therefrom; but the facts in proof here make an exception to this general rule. It is true, according to the evidence, that the defects existed when the renewal note was given by the defendant, and he had knowledge of these defects, but the plaintiff promised, as a consideration for the renewal, that he would make good his warranty and would guarantee that the defects'complained of would be completely remedied; and it was on this promise and . guaranty that the renewal note was made by the defendant. In McDaniel v. Mallary Machinery Co., 6 Ga. App. 848 (66 S. E. 146), the second headnote states the general rule, with the exception, as follows: “Ordinarily, when a purchaser renews a note or other obligation given for the purchase-price of property, and knows at the time of the renewal that the property is defective, he can not thereafter be heard to complain of the defects as a defense; The rule is subject to exceptions, and is not applicable where a renewal note is given under such circumstances as to indicate that it was given and taken with a contrary understanding.” The testimony of the defendant, stated above, seems to us to have presented a case of at least a partial failure of consideration, and was sufficient to have been submitted to the jury in proof of such failure of consideration, and to this extent, at least, to establish the defense relied upon. Atlanta City Street Ry. Co. v. American Car Co., 103 Ga. 254 (29 S. E. 925). Judgment reversed.