5215 | Ga. Ct. App. | Jan 20, 1914
1. The evidence did not demand a finding in favor of the plaintiff for the full amount sued for, and the discretion of the trial judge in granting a first new trial will not be disturbed.
2. On another trial, if it appears that the automobile, for the purchase-price of which suit was brought, was sold to the defendants under a contract containing a limited warranty, they can not insist upon ariy warranty other than that embraced in the contract. Cochran v. Jones, 11 Ga. App. 302 (75 S.E. 143" date_filed="1912-07-02" court="Ga. Ct. App." case_name="Cochran v. Jones & Oglesby">75 S. E. 143). Moreover, if the defendants rely upon an express warr&.,ty, they can not defend upon proof of an implied warranty. Johnson v. Latimer, 71 Ga. 470 (2) ; Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (72 S.E. 40" date_filed="1911-08-22" court="Ga." case_name="Smith v. Joyner">72 S. E. 40). The evidence was sufficient to raise an issue of fact upon the plea of partial failure of consideration, and did not demand a finding that the machine was not in some respects deficient. Judgment affirmed.