| Ga. | Mar 22, 1897
"Waterman & Company sued Snowden for damages for a breach of warranty in the sale of certain live stock. Their • petition alleged that “said sale of stock was made without any waiver whatever, but under a general warranty implied by law as to soundness, healthfulness, etc.” It was-further alleged, that at the time of the delivery of said stock, the same were affected with the disease of glanders, which, rendered them worthless, but that this defect was not then patent, and was unknown to Waterman & Company. By amendment it was alleged, “that defendant at the time of' said sale knew, or ought to have known, of said defects in said mules.”
1. The seller of personal property, in all cases, unless-; expressly, or from the nature of the transaction, excepted,, warrants: first, that he has a valid title and right to sell; second, that the article is merchantable and reasonably suited to the uses intended; third, that he knows-of no-latent defects undisclosed. Civil Code, §3555. Each, clause in the section cited provides for a separate- and distinct warranty, and a breach of any one is a breach of the-implied warranty of the law. A failure of title, a defect-of title, or an encumbrance upon the property, would, in-a sale within the terms of the section, constitute a breach of warranty under the first clause. If the article- is totally
2. The petition, before it was amended, in effect alleged that the article sold was not merchantable and was not reasonably suited to the use intended, and was “wholly and utterly. worthless.” Therefore the court committed no error in overruling a general demurrer thereto. As against a general demurrer a cause of action for a breach of warranty under the second clause was sufficiently set forth. In such a suit knowledge, or want of knowledge of the defect, by the seller, is immaterial.
3. While the presiding judge took the view that an allegation of knowledge was material, and required the plaintiff to allege that the seller knew, or ought to have known, of the defects in the animals at the time of the sale, and then overruled the demurrer, the decision iñ overruling the demurrer was right. The petition set forth a good cause of action under the second clause, and the amendment was harmless surplusage.
4. As the case was tried solely upon the theory that the plaintiff’s right to recover rested upon the breach of the warranty that the seller knew of no latent defects undis
5. The plaintiff having alleged that the animals were totally worthless on account of the disease of glanders, and there being no allegation of any other disease, it was incumbent upon the plaintiff to establish this allegation, and proof of any other disease would not authorize a recovery. It was error, therefore, to refuse to charge, at the request ■of the defendant, that the plaintiff must be held to proof of the disease of glanders only; and would fail to recover, if the evidence did not show this disease, although it might disclose other diseases.
J udgment reversed.