144 Ga. 85 | Ga. | 1915
E. P. Frazer brought suit against J. A. Smith and J. W. Callaway on their joint promissory note for $1200, dated October 18, 1912, and due four months after date. The defendants admitted the execution of the note, but pleaded, in defense thereto, partial failure of consideration on account of an alleged deficiency in the quantity of certain corn and stover which constituted a part of the consideration for which the note was given; and they sought to recoup damages against the plaintiff on account of said deficiency in quantity of goods purchased, both for the contract price of the alleged deficiency in quantity and for the difference between the contract price and the market value thereof. The evidence for both sides showed that the corn and stover alleged to be deficient in quantity were, at the time of the sale and execution of the note, located on plaintiff’s farm, and in shocks in the field where it was grown. The defendants both testified, that, in agreeing to-buy the farm products in question, they relied upon statements of the quantity of the various articles embraced in the contract of sale, made by the plaintiff to them, and shown by
The plaintiff’s testimony tended to show that the memorandum which he submitted to the defendants was purely an estimate, and that he sold the farm products by these memoranda merely as an estimate, and made no warranty as to amount. He testified, in part, as follows: “Mr. Callaway and myself made up this estimate on my porch at my farm, and it was given to Mr. Callaway the day before he signed the note, and he brought it to town to show to Mr. Smith, and they came back the next morning. That was not the first time I had ever mentioned selling this produce to them. I had mentioned it several times before. . . Smith and Callaway went over the place and looked at the stover, and after I agreed to cut it in two they took it that quick. The final sale was not 975 bushels of corn, but just half of it. Here is where I divided them all in half. I estimated the corn at fifteen bushels an acre, and then I cut it in half and made it seven and a half bushels an acre; and then they took it. I don’t know how much corn was there. That was the first year I harvested corn that way. . . I estimated they would get a ton off of every acre, and that made sixty-five tons; and I figured on the government estimate of forty per cent, of corn. . . Mr. Smith saw the bin the oats were in; and he saw the peas through the window; he didn’t measure them. Smith and Callaway and myself did not go through the entire corn; we went through part of it; it was not necessary to go over it all; they had been over the whole farm.”
The court directed a verdict for the plaintiff. We are of the opinion that the court properly so directed. Considering the testi
Under the evidence no other conclusion could properly be reached than that the statement furnished by tlie vendor was merely an estimate, known and accepted as such by the vendees, and that no warranty was intended. Under the evidence of the defendants themselves, the only proper verdict that could have been rendered was one for the plaintiff for the full amount of the note sued on; and the court did not err in directing the jury accordingly.
Judgment affirmed.