14 Ga. App. 333 | Ga. Ct. App. | 1914
O’Brien sued out an attachment for purchase-money, which was levied upon a certain horse described in the attachment. Before the suit upon the attachment was tried O’Brien died, and his executrix, Mrs. Jessie M. O’Brien, was made party plaintiff in his stead. The defendant filed a plea that the horse was worthless, and that, relying upon false and fraudulent representations of the plaintiff, he had been defrauded into giving a check for $100, which represented a part of the purchase-price of the second horse. By amendment he alleged that the deceased vendor represented that the horse, for which the first horse was exchanged, was. a good, sound, gentle work-horse, trusty and reliable, and worth $325, — being $100 in addition to the $225 given for the first horse; that the horse was not as represented; not a good workhorse, nor gentle and trusty; and hence the consideration for the additional $100, represented by the check, had totally failed.
Hpon consideration of the general grounds of the motion for a new trial, that, the verdict is contrary to the evidence and without evidence to support it, and consequent examination of the brief of evidence, it is clear that a finding in favor of the defendant would hardly have been probable if the incompetent evidence of the defendant, as to-the transactions and communications with the deceased, were eliminated. And though the objections to this testimony are not so presented as to require the grant of a new trial,' either by the lower court or by this, it would not seem proper that
Judgment reversed.