28 Ga. App. 537 | Ga. Ct. App. | 1922
(After stating the foregoing facts). It is clear, from a reading of the contract which is the basis of this suit, that, in order for the defendants to successfully defend on the ground of failure of consideration, or to recover damages for the alleged breach of any warranty contained in the contract, it was incumbent upon them first to return the machine to the plaintiff. It appearing from paragraphs five and six of their answer that they had not complied with the terms of the contract as to a return of the machine in case it proved unsatisfactory, the court did not err in sustaining the demurrer thereto. There is no merit in the contention of the defendants that the return of the machine was merely permissive and optional. On the contrary, the provision of the contract as to the return of the machine was mandatory. The books of this State fail to disclose any case directly in point, but there are a number of cases from other courts of last resort which decide the question now under consideration. In Adam v. Richards, 2 H. Bl. 573, where the horse was sold with an express warranty and an agreement to take him back if not found as warranted, it was held that it was incumbent on the purchaser to return the horse as soon as the faults were discovered. And in Austin Mfg. Co. v. Clendenning, 21 Ind. App. 459 (52 N. E. 708), where, on the sale of a rock crusher warranted as having a certain capacity, it was agreed that if, after a certain time, the sellers should fail to make the crusher do the work as represented,
The allegation in the special plea, that the defendants stated to one of the plaintiff’s expert mechanics, who had been sent to inspect and put the machine in satisfactory condition, that the machine wholly failed to come up to the express warranty set forth in the contract, and that unless the company exercised its
After the special defenses set out in paragraphs five and six of the answer had been stricken on demurrer, the remaining portions of the answer interposed no good defense to the action, and the court, sitting, by consent, without the intervention of a jury, did not err in rendering judgment in favor of the plaintiff for the full amount sued for.
Judgment affirmed.