Whigham v. Hall & Co.

Hill, C. J. (After stating the foregoing facts.) 1. The plea of partial failure of consideration set up facts which, if proved, would constitute a good defense as to the mule which the plea alleged was unsound and suffering from pneumonia at the date of the sale, and had died before the maturity of the note. For the purpose of avoiding the effect of this plea, it is insisted by learned counsel for the defendants in error that the language contained in the note, that the maker agreed to pajr for the property even if it should be lost, damaged, or. destroyed, or died from any cause whatever, excluded any warranty as to the soundness of the mules, and obligated the maker at all events to pay the note, and that the language, also contained in the note, that the seller only warranted the title to the mules, excluded any other express warranty; and this seems to be the view that the trial judge took of the plea. It is well settled that in conditional bills of sale of personal property, where the title to the property is reserved until the purchase-money is paid, the loss or destruction of the property before maturity of the purchase-money note falls on the vendor. [511] Bentley v. Johnson, 63 Ga. 662; Randle v. Stone, 77 Ga. 501. This Tule of law could be rendered inapplicable by express agreement, and it is pláin that the statement in the note, that the purchaser agreed to pay for the mules, whether they be lost, damaged, or destroyed, or died from any cause whatever, was for the purpose of preventing the application of this rule of law to the contract; but can it be reasonably contended that the language quoted was intended to exact payment from the purchaser although the mules may have been unsound and suffering from some latent disease known to the seller, but unknown to the purchaser, at the date of the sale? Suppose the mules died from this latent cause before their delivery to the purchaser, but after the execution of the note, could it be reasonably contended that he should nevertheless pay for the mules ? The language in the note, “dies from any cause whatever,” reasonably construed, we think, means some cause which did not exist at the time of the sale, but which originated after the sale, and after the delivery of the mules to the purchaser, and before the maturity of the purchase-money note. In any event, what was intended by the language was ambiguous, and the question of fact should have been submitted to a jury, as to its meaning and scope. Civil Code of 1895, § 3672; Wiggins v. Cleghorn, 61 Ga. 365. It is also insisted by learned counsel for the defendant in error that parol evidence would not have been admissible to establish the allegation in the plea of a parol warranty at variance with the language of the contract, which excluded any warranty except as to title, and, of course, excluded the warranty as to soundness. We do not think that this rule of law is applicable. The note sued on was signed bjr the maker, who was the purchaser of the mules. It is his contract, and not the contract of the seller; and the parol warranty set out in the plea was the contract of the seller, and was entirely consistent with the terms of the note. In other words, the note was a part of the contract which was reduced to writing, and the parol warranty as to soundness was another part of the contract, which was not reduced to writing. The ndte did not express the whole contract, and was not intended, reasonably construed, in our opinion, to express the whole contract. “A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or [512] title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them.” Elgin Jewelry Co. v. Estes, 122 Ga. 807 (50 S. E. 939). Therefore, the contract of warranty in this case was collateral to the note, and it was admissible to prove this contract of warranty by parol. It was not included in the written contract, and did not vary its terms. Roberts v. Mathews, 77 Ga. 458; McMahan v. Tyson, 23 Ga. 43. We think, therefore, that the court erred in striking this plea. Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267). 2. The claim was set up by one of the makers of the note, that he was a surety, and had been released and discharged because the holder of the note had taken back from the principal maker thereof the mule which had not died, and had allowed the maker a credit for the full value of this mule. This was not such a novation of the contract as to release the surety, and did not increase the risk of the surety. It simply reduced the amount of the note on which he' was surety, leaving him liable for the balance due on- the note, if the deiense set up m the original plea was not established, for the agreed value of the mule which had died. It is well settled that if a release of a part of the property of the principal does not have the effect of changing the contract and does not injure the surety, his liability is not affected thereby. Brandt on Suretyship, § 486; Higdon v. Bailey, 26 Ga. 426. The court did not err in striking this plea. The other assignments of error made in the bill of exceptions, that the court erred in directing a verdict, after having stricken the pleas, and in rendering a judgment without the intervention of a jury, are not covered by the brief of the plaintiffs in error, and were not alluded to in the argument, and must be treated as having been abandoned. The judgment is reversed, because of the error discussed in the first division of the opinion. Judgment reversed.