13 Ga. App. 591 | Ga. Ct. App. | 1913
The Lummus Cotton-Gin Company sued McDuffie upon a promissory note for the purchase-price of a gin outfit bought under a written contract of purchase, in which the seller agreed to furnish a competent man to superintend the erection of the machinery, and the purchaser agreed to “properly put up and operate the machine according to the printed directions furnished by the manufacturers.” Attached to the contract is a drawing applicable to the order, and a statement that blue-prints of building plans and machinery, identified by certain letters and numbers, have been sent, but these blue-prints do not appear in the record. The defendant admitted the execution of the note and assumed the burden of proving his plea of partial failure of consideration, but, at the conclusion of the testimony, upon motion of the plaintiff’s counsel, the court directed a verdict in favor of the plaintiff for the full
We are of the opinion that the trial judge erred in directing the verdict. ’'There is ample evidence in the record that the machinery failed to work satisfactorily. The particular in which the operation of the machinery was defective was that the fan failed to suck the cotton up and blow the seed away as fast as it should. By reason of this condition the seed flues became clogged up, and it was necessary to remove the seed by hand; and frequently the belts would be.torn... According to some of the.testimony the delay in clearing the seed flues by hand greatly reduced the. daily ginning capacity of the outfit, to say nothing of the expense entailed bj the breakage of the belts. It appears to have been undisputed that the failure of the gin to operate properly was due to the fact that a 20-inch pulley was put where a 24-inch pulley ought to have been- put, and the 24-inch pulley was fitted on where the 20-inch pulley should have been placed, for one of the witnesses transferred these pulleys, exchanging their positions,' and after the change there was no recurrence of the difficulty as to the seed flue. It is perhaps upon the strength of the fact that the testimony upon this point was uncontradicted that the court adjudged that there was no issue to be submitted to the jury; for this undisputed testimony indicates that the machinery was perhaps of' good quality and reasonably suited for its purpose; and thus it might superficially appear that the defendant had failed to carry the burden assumed by him, of establishing a partial breach of the contract of purchase. Having admitted a prima facie case it devolved upon the defendant, in order to warrant a verdict in his favor, or in order to obtain a reduction below the amount mentioned in the note, to establish that there had been a breach of the contract in some respect, and that this breach had resulted in subjecting him to pecuniary loss.
At first' sight it would seem that, since the defendant was to
It is not disputed that the defendant gave notice of the gin’s failure to operate properly, and that in response to his notice a man was sent to correct the defect. It was for the jury'to say whether the man sent was competent to deal with the situation, for he failed to discover the misplacement of the pulleys, and the jury might be authorized to find that neither he nor the other agent, who was sent to superintend the. original erection of the ginning outfit, was competent. Under the contract it is a jury question whether F. H. Lummus Sons Company complied with its undertaking to furnish a competent man to superintend the erection of the ma