80 Ga. 150 | Ga. | 1888
It appears from the record that George D. Harwell brought suit in a justice’s court in Coweta county for $50, against George W. Perdue. The petition of Harwell filed in the justice’s court alleged that Perdue was indebted to him in the sum of $50, for damages sustained by the petitioner in an exchange of horses between him and Perdue. He alleged, in substance, that at the time of the trade be
Upon the trial of the case in the justice’s court, the jury found for the plaintiff, and the defendant sued out his certiorari to the superior court, which was overruled by the court; whereupon the defendant excepted and brought the case here for review. The grounds insisted upon here are: (1) that the jury found contrary to the evidence; (2) that the cause of action set out in the petition is not one arising ex contractu, or for an injury done or damages to personal property, but that it was an action for fraud and deceit, and the court had no jurisdiction to hear it; (3) that the verdict was contrary to law, because an action will not lie for the recovery of damages resulting from a defect in an article sold, where the defect is of a character which could be easily discovered by the purchaser, and the purchaser has full notice of the defect before purchasing.
The defendant having told the plaintiff that the cause of the injury to the wind of the mare was the epizootic, and it having turned out that the cause of the injury was a' different and more serious disease, and a disease which the testimony showed was incurable, the defendant must have known that the mare had the latter disease, and under the law warranted the mare against that disease. The jury had a right to infer, from the length of time that the defendant had owned the mare, that he must have known that it was the “bellows,” and not the epizootic which injured the mare. Another, and perhaps the stronger reason is, that the declaration filed by the plaintiff does not allege fraud or deceit on the part of the defendant. It does not even hint at either in any part of the declaration; showing that the pleader relied upon the contract and not upon the tort. We therefore think that, while the declaration, as said above, is loosely drawn, it was a suit upon the breach of the warranty, and' was not a suit for a tort as contended by counsel for the plaintiff in error.
Judgment affirmed.