42 Ga. App. 703 | Ga. Ct. App. | 1931
Where the subject-matter of a written contract of sale was a chattel described as “one No. 3010 display case,” a stipulation therein that “the use of the property described herein, or any portion thereof, for a period of five days, constitutes an acceptance of the same as complying with all the terms and specifications of this contract, and all claims of damages, errors, or shortage not filed within that time are hereby waived,” though perhaps not excluding altogether the implied warranty of the law (John A. Roebling’s Sons Co. v. Southern Power Co., 142 Ga. 464 (83 S. E. 138, L. R. A. 1915B, 900); Colt Co. v. Bridges, 162 Ga. 154, 132 S. E. 889; Hawley Down-Draft Furnace Co. v. Van Winkle Gin &c. Works, 4 Ga. App. 85, 60 S. E. 1008; Powell Co. v. Cowart, 37
It was entirely permissible for the purchaser to waive any and every sort of warranty, even the implied warranty of the law; and since he was at liberty to do this, it follows that he was free to do the lesser thing of providing the terms and conditions upon which he might insist upon such warranty or warranties as were not waived. It would be a fraud, of course, for the vendor to conceal defects knowing that they were latent and not reasonably discoverable within the time specified; and where in such a case the defects were not actually discovered within that period, the suit would be open to defense “at least to the extent of the partial failure of consideration occasioned by'the fraud.” Beasley v. Huyett, 92 Ga. 273 (3) (18 S. E. 420).
The nature of the present case may be sufficiently understood from what has been said above. Upon application of the rulings made, we necessarily hold that the defendant’s answer failed to set
Judgment reversed.