32 Ga. App. 199 | Ga. Ct. App. | 1924
1. In case of a sale of a chattel, where the parties have reduced to writing what appears to be a complete and valid contract of sale, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire agreement, and parol evidence of prior or contemporaneous representations, statements or agreements in regard to the subject-matter is inadmissible to add to, take from, or vary the written instrument. Bullard v. Brewer, 118 Ga. 918
2. The instrument sued on in this case purports to show upon its face all of the terms of a valid contract of sale of personalty, and it was not permissible, in the absence of fraud, accident, or mistake, for the defendant vendees to plead or prove the breach of a contemporaneous express warranty not in writing. The court erred in overruling the motion to strike that portion of the plea set out in the statement of facts, and in allowing evidence in support thereof.
3. The defendants did not plead the breach of an implied warranty, and the court committed error against the jjlaintiff in submitting that defense, as was done in the following charge: “If you decide the mule was not reasonably suited for the purpose for which it was intended, it would be your duty to find for the defendant. If you decide that the mule was reasonably suited for the purpose for which it was intended, it would be your duty to find for the plaintiff.” Even assuming that the plea was good, and that this charge was intended to submit only the defense pleaded, — that is, the breach of an express warranty, which, if not in violation of the parol evidence rule, might, of course, be in the same terms as the implied warranty of the law, — the charge still would be error, for the reason that it assumed the existence of the express agreement, and also that any failure of consideration, regardless of extent, would defeat the remainder of the note.
4. Even if the plea had been proper and no error had been committed in the trial, a new trial should have been granted because there was no evidence of the extent to which the consideration had failed. The fixed purchase price of the two mules was $250. Erom the defendants’ evidence the jury would have been authorized to infer that the mule complained about was not worth at the time of the sale more than $40 or $50. There was no proof, however, of what should have been its value if it had not been possessed of the defects alleged. There would be no presumption that the two mules were of equal value, and proof of the purchase price of both together would be no sufficiently definite evidence of the cost or value of one of them. Thus the jury were not furnished with any data by which they could properly determine the extent of the failure of consideration. It follows that in no view of the case was there any evidence to support a finding in favor of the defendants. Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (5) (118 S. E. 446 (5)); Coffee v. Worsham, 31 Ga. App. 62 (119 S. E. 665); Kiser Co. v. Branan, 31 Ga. App. 241 (1) (120 S. E. 427); Brenard Mfg. Co. v. Winn-Wilkes Drug Co., 31 Ga. App. 200 (1) (120 S. E. 446).
Judgment reversed.
