116 Ga. 511 | Ga. | 1902
The National Computing Seale Company brought suit in the justice’s court against Eaves and another, upon four promissory notes. The case was appealed to the superior court, and the trial there resulted in a verdict in favor of the defendants. The case is here upon a bill of exceptions sued out by the plaintiff complaining that the court erred in overruling its motion for a new trial; and a cross-bill of exceptions sued out by the defendants, assigning error upon various rulings adverse to them. The notes sued on referred to a contract which had been entered into between the parties, and made the same a part of each note. It appears from this contract that the plaintiff had sold to the defendants a set Of computing scales for the sum of eighty dollars. In this contract appeared the following words: “ Guaranty. — Should said National
The foregoing disposes of all questions made by the main bill of exceptions that require extended notice. The court overruled a motion to strike a certain portion of the defendants’ plea which set forth certain representations which had been made by the agent of the plaintiff to the defendants in regard to the character ■and quality of the scales. There being a written contract between the parties, which in terms set forth that it contained all of the •stipulations entered into by them, the defendant can not be allowed •by parol to add to or vary the terms of this contract. If the representations of the agent had this effect, the portion of the plea containing them should have been stricken. If the representations of the agent did not have the effect of adding to or varying the contract, that portion of the plea containing them should have been ■stricken as surplusage.
2. Complaint is made in the cross-bill of exceptions that the judge erred in charging the jury, in substance, that as the contract was made by the defendants after the latent defects were discovered and with a full knowledge of these defects, they could not recover any payments made, whether the machine was worth anything or not. As an abstract proposition of law, what was said by the court is probably correct, but the complaint is that the charge was error because it was not adapted to the facts of the case. The •defendant Bentley testified distinctly that he made the payments upon the express promise of the attorney of the plaintiff that he would have the defects in the scales removed. If the jury believed that this was true, and also believed that the defects in the scales were of such a character that they could not be remedied, the defendants would be entitled to recover on their plea of recoupment. See, in this connection, Means v. Subers, 115 Ga. 371.
3. Attached to the summons in the justice’s court were copies ■of the four notes sued on, and of the contract which was referred to in the notes and made a part of the same. A motion was made to 'strike the contract as an exhibit. There was no error in overruling this motion. The contract was a part of each note, and was properly exhibited to the summons. There was no error in refus
Judgment on both main and cross-bill of exceptions reversed.