Kilpatrick v. Southern Crate & Veneer Co.

Hooper, J. The plea and answer of the defendant to this action upon a promissory note alleged, substantially, that the note represented the purchase-price of 12000 crates bought by defendant from plaintiff for the purpose of packing peaches therein; that instead of being the usual and customary ■ standard peach crates, they were in fact tomato crates with undersized cups; that “defendant had great difficulty in packing his peaches so that the crates would have what is known in the trade as a bulge pack;” that defendant “received the first 6000 of said crates with said undersized cups; that his peaches were reported as being too low and the crates not filled; and that by the use of said cups so furnished by this plaintiff, which defect was not easily discernible to the eye, . . he was damaged in the sum of $2000.” Said damages are alleged to represent a loss of 50 cents per crate suffered by defendant because the said crates “prevented this defendant from securing the bulge pack necessary to secure the market price for said peaches so packed.” Held: Even should it be ruled in this ease (as this court is not willing to do) that said plea and answer sufficiently alleged a breach of warranty by the plaintiff which could be pleaded in abatement of the purchase-price by the defendant (Civil Code of 1910, § 4136), the special damages sought to be recovered by the defendant, which were in excess of the amount of the note sued upon, are not recoverable (Civil Code, § 4395) ; and, no general or nominal damages being sought, the trial judge did not err in striking said plea and answer, on demurrer. See Christophulos Café Co. v. Phillips, 4 Ga. App. 819 (62 S. E. 562), and cit. Judgment affirmed. MacIntyre, J., concurs. Broyles, C. J., concurs in the judgment.