Stimpson Specialty Co. v. Parker

Hill, C. J. 1. “Where machinery is bought for a certain purpose) and after its reception it proves, upon trial, not to be adapted to the purpose, but the purchaser nevertheless retains it, an action for the price can not be defeated upon a plea of total failure of consideration, unless the evidence shows that ■ the machinery was wholly valueless for any purpose.” Harder v. Carter, 94 Ga. 482 (19 S. E. 715). 2. A plea of total failure of consideration, to an action upon a promissory note given for the purchase-price of a “sausage mill, No. 40 coffee mill,” is not supported, unless the evidence shows that the mill was entirely worthless as a sausage mill, or as a coffee mill; and especially is this true where the written contract of purchase fails to disclose that the mill was intended to be used solely as a sausage mill, and not as a coffee mill, and the evidence also fails to show in what particulars the mill was defective, either as a sausage mill or as a coffee mill, and it does appear that it was worth as a coffee mill the amount of the purchase-price for which the nóte was given and on which the suit, .was brought. 3. To support a plea of total failure of consideration to a suit on a promissory note given for the purchase-price of machinery, - the defendant must establish by evidence that the machinery purchased by him was entirely worthless for any purpose; the jury would not be authorized to render a verdict giving the defendant the benefit of a partial failure of consideration, in the absence of any data from which a reduction could be made from the contract price, although a plea of total failure of consideration includes a plea of partial failure of consideration. Grier v. Enterprise Stone Co., 126 Ga. 17 (54 S. E. 806) ; Clegg-Ray Co. v. Indiana Scale & Truck Co., 125 Ga. 558 (54 S. E. 538). Judgment reversed. The judge (who, by consent, tried the case without the intervention of a jury) rendered judgment in favor of the defendant; and the plaintiff excepted. R. D. Smith, for plaintiff. ■ Fulwood & Murray, for defendant.