Hardee v. Carter , 1894 Ga. LEXIS 139 ( 1894 )

Hardee sued Mrs. Carter on an account for a machine-of two-horse power, for cotton gin use. Defendant pleaded that plaintiff", knowing that the machine was bought for running a gin, reported that it was reasonably suitable for the purpose intended and was suitable-for running defendant’s ginnery; but, though used as-directed by plaintiff", the same was not suitable for running said ginnery and could not be used for that purpose. Also, that the machine was represented as being first class and a perfect and complete machine; but it-was not first class nor perfect and complete, and was-worthless and of no value; wherefore “ the conditions-of said note has wholly and entirely failed.” The jury found for the defendant, and plaintiff’s motion for a new trial was overruled. The motion alleges that the verdiet is contrary to law and evidence, and that the court erred in charging the jury as follows:

J. M. Mathews, for plaintiff.

“ Mrs. Carter has filed her plea of total failure of consideration, in which she sets up the fact that she purchased the horse-power for a certain purpose, to wit, for ginning cotton, threshing, or for sawing wood. The defendant says by her plea, and has introduced certain testimony in support thereof, that she bought the horsepower for the purpose of ginning cotton. Now, if it was represented to her to be suitable for the purpose for which she bought it, and it failed, then she would not be liable to pay the plaintiff, and the plaintiff could not recover against her.

“ In making the test, gentlemen of the jury, it being* horse-power, I charge you this to be the law: that if she was to use just such stock as was ordinarily used for farm purposes and no'ne other, and if it took horses of greater capacity or heavier weight than the ordinary horses, it was the duty of the plaintiff in this case to have put her on notice of that fact. If that fact was concealed from her, or if the plaintiff represented to her that they could be used ordinarily upon farms for the purpose of ginnery, then she would not be bound to furnish any other than an ordinary farm horse ; and if it took horses of greater capacity, and the plaintiff concealed that fact from her, then it was a fraudulent act upon his part, and the plaintiff could not recover.”