De Loach v. Hardee's Son & Co.

Jackson, Justice. This action is based upon a contract to pay $143.50 for a certain quantity of Sea Fowl Guano. The jury found for the plaintiffs, much of defendant’s testimony having been ruled out by the court. lie moved for a new trial on the ground that it was so ruled out, and also on the ground of newly discovered evidence. The motion was overruled, and the defendant excepted. I. The contract contained the following stipulation: “ Which said note is given for 4,100 pounds of fertilizer known as the Sea Fowi Guano, valued at $143.50, which I buy and accept from N. A. Hardee’s Son & Co., entirely [98] upon its analytical standard, they in no case to be held responsible for the practical results.” It will thus be seen that the only issue which defendant could make was this: Rid the guano come up to the analytical standard bargained for ? He put in a plea that it did not come up to the standard bargained for, and was therefore not the article which he agreed to pay for, and was worthless. This plea he had the right to make good by legal and competent proof; and upon the competency of that proof the court is to judge: upon its sufficiency, the jury; or the court, on motion for a non-suit, or for a new trial. The court here excluded the evidence from the jury, and the question is, was the rejection of it right ? A doctor and chemist swore that he had analyzed the guano — that its analytical standard was to be of such and such ingredients according to the report of the Georgia commissioner of agriculture, and that this guano by sample furnished him by the defendant, did not, by a great deal, reach that standard. What the true standard was seemed to have been agreed upon tacitly — no objection being made to the mode of ascertaining it from the commissioner’s report; but the chemist had .not perfectly analyzed the sample, as appeared from questions put by the court, and could not swear exactly to the component parts of the guano, though he did swear that the soluble matter, which is the only fertilizing quality, was, by a great deal, less than the standard. We think that his testimony was competent and admissible for what it was worth. Whether sufficient by itself to authorize a verdict, is not the question. It might have been aided by other testimony. The main defect in it, it strikes us, is that it does not appear whether the sample analyzed had been preserved in such manner as to insure that it was a fair sample of the guano when delivered. The ammonia would have evaporated, and much of the fertilizing properties of the manure been lost, had it not been so preserved. It was therefore important to show [99] when it was analyzed by Dr. Lane, and where and how kept until that time. But all this might have been supplied by questioning the witness or by other witnesses, and relates more to the sufficiency and effect of evidence than to its admissibility. On the whole, we think it admissible, to be pa'ssed upon by the jury under the charge of the court. See Allen vs. Young, last term, not yet reported ; 51 Ga., 298; 53 Ib., 635. In the case of Allen vs. Young, the stipulation is very similar to this, and there this court held that “ the precise right of the purchaser was to receive an article containing the chemical and fertilizing properties enumerated in the guaranty, and these in the proportions and up to the degree of strength held out as a standard,” and we further say that the best mode to arrive at it is to test a sample by analyzing it, due care being had to preserve a sample in order to insure its fairness. “Test or comparison by indirect means might be practicable, too,” we go on to say in the syllabus of that case. So that that ease would seem to strengthen the view we take of this. So in the case in 53 Ga., 637, it is ruled that the opinion of a chemist after analysis is evidence to be considered by the jury — not conclusive, of course — but, nevertheless, evidence. 2. While, by the express terms of his contract the defendant cannot plead that the practical result of the use of the guano was that it made nothing, and defend himself on that ground, and therefore cannot introduce evidence for that, purpose; yet such evidence is admissible to strengthen the testimony of the chemist that the guano did not come up to the stipulated standard, and to show that by its failure to meet the standard agreed upon, the defendant was damaged. If it came up to the stipulated standard, it is wholly immaterial whether it made a lock of cotton or grain of corn ; but the fact that it made neither is evidence [100] that it did not come up to that standard, especially where the evidence is, as in this case, that other Sea Fowl Guano which came up to the standard, or nearly so, did help the production largely. And this view seems, too, to accord with the ruling in Allen vs. Young, last term, where we say on a similar contract, or intimate, at least, that the effect on crops could be considered in connection with the admission of the seller made on the trial. The ground of newly discovered testimony was not pressed. We think, however, that the case had better be tried over, in accordance with the views given above. It may be that the result will be the same before the jury. That should depend much upon the preservation of the sample analyzed as a fair sample of the manure sold; but the defendant’s evidence was improperly excluded, and this entitles him, as it went to the vitals of his case, to a new trial. Judgment reversed.