Carter v. Yates-American Machine Co.

Stephens, J. 1. Where a contract for the sale of “second-hand machinery” contained an express warranty that the machine was “rebuilt and guaranteed to be as good as new for all practical purposes, with competent operator,” and also a provision that “a retention of the property [by the purchaser] after one day from date of arrival shall constitute an acceptance” and be “a conclusive admission of the truth of all representations made by or for the consignor and void all its contract of warranty, express or implied,” a voluntary undertaking by the seller, without any consideration, to repair the machinery in such a manner as would make good the express warranty, although made at the request of the purchaser, the request being made after the expiration of the one-day period provided in the contract within which the retention of the property amounted to an avoidance of the warranties, did not amount to a waiver by the seller of the invalidity of the warranty as expressed in the contract. International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034) ; Cason v. Jordan, 38 Ga. App. 761 (2) (145 S. E. 537). 2. In a suit by the seller against the purchaser on the note given for the purchase-price of the machinery, the court properly sustained the demurrer to the defendant’s plea setting up a breach of the warranty. The evidence demanded a verdict for the plaintiff in the amount of the note and attorney’s' fees, and a verdict for the plaintiff, in the full amount sued for, was properly directed. Judgment affirmed. Jenkins, P. J., and Bell, J., eoneur. II. W. Nelson, for plaintiff in error. B. L. Tipton, G. E. Jackson, contra.