Fallen v. Electric Appliance Co.

Stephens, J. This being a suit upon a note given for the purehase-price of personalty, where the defendant pleaded a total failure of consideration, and where it appeared from the evidence offered by the defendant that the property sold, which was an electrical refrigerator, would not serve the purpose of refrigeration, which was the use for which the property was intended, and there being no evidence that would authorize the inference that the property was totally worthless for any purpose, but, from the nature of the property itself as it appears from the uncontradicted evidence, an inference was demanded that it had some value and was not totally worthless for any purpose, and there being no data from which the jury could find to what extent the consideration had partially failed, the evidence was not sufficient to sustain the defendant’s plea, either as a plea of total failure of consideration or as one alleging a partial failure of consideration; and the court did not err in directing a verdict for the plaintiff. Hardee v. Carter, 94 Ga. 482 (19 S. E. 715 ) ; Clegg-Ray Co. v. Indiana Scale Co., 125 Ga. 558 (54 S. E. 538) ; Felder v. Neeves, 36 Ga. App. 41 (135 S. E. 219); Colt Co. v. Armstead, 36 Ga. App. 64 (135 S. E. 317). Judgment affirmed. Jenloins, P. J., and Bell, J., concur.