Gary v. Parker

Wade, C. J. The mortgage foreclosed in this case was executed as security for the payment of a purchase-money note, which recites that it is given for a mule bought from the payee “after a full inspection of same” by the buyer, who received the same “in good order,” and agrees to pay therefor “although it may die;” and that “the loss, death, damage, or destruction of said property, or any part thereof shall in no way abate the payment of this note or any part thereof,” the buyer “assuming all the risk,” and purchasing the property described on his “own judgment, and without any warranty express or implied, and without any representations whatever which are not fully set forth in this note.” Held, that the court did not err in striking an affidavit of illegality, in which it was attempted to set up an express warranty and certain representations directly in conflict with the terms of the written contract. Brooks v. Jenkins, 15 Ga. App. 64 (82 S. E. 634). It does not appear that any flducidry relation existed between the parties, or that any deception was practiced upon the maker of thé note to prevent him from ascertaining at the time if its execution the exact contents thereof, or that he was unable to read and understand the contract; and it must therefore be held that he is bound by its express terms, which include a recital that no representation not fully set forth in the note was made by the seller; and he can not set up in avoidance of the contract alleged representations tending to support an express warranty, when the contract itself declares that no warranty of any kind, either expz-ess or implied, was made. See Bond v. Perrin, 145 Ga. 200 (88 S. E. 954); s. c. 18 Ga. App. 179 (89 S. E. 79). Judgment affirmed.