Lambert v. Armstrong & Brother Co.

Brotx.es, C. J. 1. “Where, to an action upon a promissory note given for the purchase-price of machinery, the defendant filed a plea of failure of consideration, and in support of such plea introduced evidence tending to show that the machinery was not reasonably suited to the purposes for which it was intended, because of certain defects existing therein, and where the evidence further showed that at the time of the execution of the note the defendant had actual knowledge of all of such defects, the law of implied warranty on the part of the seller did not enure to the benefit of the defendant, but, on the contrary, he was properly held to have waived the same as to all such defects.” Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496). 2. This was a suit on a promissory note, and the defendants first filed a plea of failure of consideration, and, subsequently, a plea of payment. Under the ruling in the preceding paragraph, the evidence adduced on the trial demanded a finding against the plea of failure of consideration. [251] Decided November 16, 1934. Rehearing denied December 12, 1934. Cotterill, Eopldns, Brym .& Ward, 11. E. Collier, for plaintiffs in error. Burr ess & Dillard, contra. 3, In support of their plea of payment the defendants introduced certain documentary evidence and the testimony of one. of the defendants. That testimony was so vague, equivocal, and self-contradictory that i't was properly construed by the trial judge (the witness being a party to the case) most strongly against the witness (W. & A. R. Co. v. Evans, 96 Ga. 481, 23 S. E. 494) ; and when so construed, the evidence for the defendants failed to support the plea of payment, and there was no issue of fact to be submitted to the jury. . 4. The evidence demanded a finding in favor of the plaintiff, and the direction of a verdict for that party was not error for any reason assigned. Judgment affirmed. MacIntyre wnd Guerry, JJ., concur.