Bentley v. Johnson , 63 Ga. 661 ( 1879 )

Jackson, Justice.

Johnson sued the defendants on a promissory note for a mule, due in the fall of the year. They put in a special defense to the effect that though the soundness of the mule was not warranted, strictly speaking, yet the consideration had wholly failed in that plaintiff agreed to substitute another mule worth the agreed price of this one, if this did not live to make the crop of the year — that this did not so live, but died in a short time of a disease he had when bought, and was utterly worthless.

• Whereupon the court in its charge ignored this defense, but ruled, and so said to the jury, that “if plaintiff expressly refused to warrant the soundness of the mule, then yon should find for the plaintiff, even if you believe the mule was diseased when sold and died of the same disease.” Under this charge the jury found for plaintiff, and the court refusing a new trial, defendants excepted.

1. It may be questioned whether plaintiff could recover at all on the note or contract in writing, under the facts. The title to the mule was in plaintiff when the animal died, and whether he could recover ,the priee of a chattel which was his when it was destroyed without fault of anybody, is a serious question. We prefer not to pass upon it without further light, as the view we take of the case disposes of it otherwise, and we merely suggest the question in the first head-note.

2. We are clear, however, that the case was not tried on the real issue. If the facts be as set up by defendants, there ought to be no recovery, because the plaintiff has not complied with the consideration on which the note was given, and the same has totally failed. According to the defendants’ plea and proof the plaintiff’s agent guaranteed that the mule would live to make a crop, and if it did not that he would furnish a mule as valuable in lieu of the one bargained, if it died. It did die, and died of a disease it had when sold, before the crop was made, and was wholly worthless, according to defendants’ plea and,his evidence; and defendants had the right to have that issue go to the jury, which the court’s charge took away from them. The evidence is certainly strong enough for defendants to entitle them to go to the jury on the issue thus made. Indeed the facts are hardly denied by the plaintiff’s agent who made the trade, and should certainly have, been passed upon, to say the least.

Wo think, therefore, that the court erred in overruling defendants’ motion for a new trial on the ground that the charge was erroneous, as indicated above and in the syllabus.

Judgment reversed.