Wall v. Schwarz

9 Ga. App. 845 | Ga. Ct. App. | 1911

Hill, C. J.

(After stating the foregoing facts.) 1. The proposed amendment should have been allowed. It was simply an amplification of the allegations contained in the original petition, to meet an apparent variance. We can see no reason why the plaintiff should not have been permitted to explain it by giving a full description of the animal. Murphy v. Peabody, 63 Ga. 522.

2. The promise to give to the plaintiff a colt bred by the mare, when it was six months old, according to the undisputed evidence, was distinctly a part of the consideration for the sale. The plaintiff refused to sell for $200, until the agreement to give the colt was expressly made by the defendant. ~We think that this agreement was not nudum pactum, but was based upon a valuable and valid consideration. No attack is made upon the agreement on the ground that it is indefinite, unreasonable, or impossible of performance; on the contrary, the proof shows that the promise was-made a part of the agreement, and there was no contention that the defendant, for any reason, could not have performed this agreement.

We can not agree with the learned judge that the colt, which the evidence shows would have been worth $100 when six months old, was not included in the agreement of purchase, but was simply “something thrown in for good measure, that jn New Orleans would be called ‘lagniappe.’” “Lagniappe” is defined to be “a trifling present given to customers b}r tradesmen; a gratuity.” TYhatever it may be called in New Orleans, the agreement in this case called it “a colt,” and the proof shows that the colt could have been bred from the mare, and would have been worth, when six months old, at least $100.

The evidence introduced bjr the plaintiff substantially proved the allegations of the petition and made out a prima facie right to recover. The judgment awarding a nonsuit was therefore error.

Judgment reversed.