Farmer v. Lee & Smith Mule Co.

Stephens, P. J. 1. A provision in a contract for the sale of mules that the seller “does not guarantee the health, soundness, working qualities, recovery from shipping, cold, nor against impotency of” the mules sold and described in the contract, does not relieve the seller of any obligation under an express warranty in the contract as to the age of the mules. Morton v. Tharpe, 41 Ga. App. 788 (3) (154 S. E. 716). 2. A provision in a contract for the sale of mules by which they are described as “about 8 years old” is an express warranty as to the age of the mules. McDew v. Hollingsworth, 19 Ga. App. 166 (3) (91 S. E. 246); Mizell Live Stock Co. v. Banks, 10 Ga. App. 362 (73 S. E. 410). 3. Where the contract further provides that it is agreed that should the property sold be not suited for the purposes for which it was bought the purchaser will, within ten days from the date of the execution of the contract, return the property to the seller in the same condition in which the property was when purchased, and the seller will accept the property and cancel the indebtedness, but that upon a failure of the purchaser to return the property purchased' within ten days from that date the purchaser “waives any claim for damages or failure of consideration as against this contract, and likewise waives any defect in any of said property,” the purchaser does not thereby waive any claim for damages or failure of consideration by reason of any defect warranted against by an express warranty, where the defect is latent and is unknown to the [258] purchaser, and in the exercise of ordinary care is not discoverable by him within the ten-day period, but which is known to the seller and is fraudulently concealed by him from the purchaser, and which he falsely represents to the purchaser as not existing. Beasley v. Huyett, 92 Ga. 273 (3) (18 S. E. 420). 4. In' a suit by the seller against the purchaser to recover an alleged balance due on the purchase-price, where the defendant admitted the execution of the contract of sale, and where the plea set up that at the time of the sale the plaintiff, who had had many years experience in buying, selling, and handling mules, and was familiar with the devices by which the age of a mule is determined, falsely and fraudulently represented to the defendant that each of the mules sold to the defendant was only “about 8 years old,” and thereby induced the defendant, who relied upon such representation, to complete the contract of purchase; that in fact, at the time, each of the mules was from 15 to 20 years old, and this was known to the plaintiff but was not known to the defendant, who was inexperienced in judging the ages of mules and was unfamiliar with the methods employed in determining the ages of mules and could not determine the ages of mules by any inspection which the defendant could hqye made before completing the contract of purchase; that all evidence as to the true age of the mules was undiscoverable by him and that he did not and could not, before the expiration of the ten-day period, discover the true ages of the mules; that upon the discovery of the ages of the mules he so informed the plaintiff and demanded of the plaintiff the cancellation and the1 surrender to the defendant of the note which the defendant had given for the purchase-price of the mules; and that by reason of the true ages of the mules they were worth no more than $35 each, which was less than $600, the purchase-price of both mules as recited in the contract, the plea set out a breach of the express warranty contained in the contract as to the ages of the mules, to the damage of the defendant. This breach of warranty was not waived by the terms of the contract, and it was not necessary for the purchaser to return the mules to the seller. 5. Where the defendant had paid only $200 on the purchase-price, and the mules, by reason of the breach of warranty, were worth no more than $70, the defendant’s measure of damage for the breach of warranty was the difference between the amount paid on the purchase-price and the value of the mules, namely $130. [259] 6. The defendant’s plea setting out a breach of warranty and denying liability on the indebtedness sued on, and alleging, by way of recoupment, damages against the plaintiff in the sum of $130 for which the defendant prayed judgment against the plaintiff, set up a defense to the note sued on, and a right of recoupment against the plaintiff in the amount prayed for. The court erred in sustaining the plaintiff’s demurrer to the plea and in thereafter causing a verdict and judgment to be Tendered for the plaintiff. Judgment reversed,. Sutton, J., concurs. Felton, J., dissents.