11 Ga. App. 742 | Ga. Ct. App. | 1912
Where, to a suit upon a promissory note given for the purehase-priee.of machinery, the defense relied upon was a total failure of consideration, because of alleged worthlessness or defectiveness of the machinery, and there was no express warranty,*and the evidence showed that the defendant had leased the machinery for a term of two years, with the option of buying it at an agreed price at the expiration of the lease, the money paid for the lease during the two years to be in that event accepted as part payment of the agreed purchase-price, that the defendant took possession of the machinery and operated it for the full term of the lease, and at the expiration thereof exercised the option to purchase, and gave the notes sued upon for the balance of the purchase-price, and subsequently paid several of them, and that during the term of the lease the defendant had ample opportunities for trying and testing the machinery and of discovering the existence of any defects, and, with full knowledge of the character of the machinery and of any defects that might have existed therein, made no complaint of any defect, either at the time -of the purchase or during, the term of the lease, but deliberately promised in writing to pay the balance due for the machinery, the verdict in her favor was wholly unauthorized. The evidence, practically uneontroverted, demanded a verdict for the plaintiff. Sizemore v. Woolard, 3 Ga. App. 266 (59 S. E. 833) ; Harder v. Carter, 97 Ga 273 (23 S. E. 82) ; American Car Company v. Atlanta Street Railway Company, 100 Ga. 254 (28 S. E. 40) ; Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496); Page v. Dodson, 106 Ga. 80 (31 S. E. 804). Judgment reversed.