United Motor Atlanta Co. v. Paxson Bros. , 1914 Ga. App. LEXIS 160 ( 1914 )

Pottle, J.

1. The evidence did not demand a finding in favor of the plaintiff for the full amount sued for, and the discretion of the trial judge in granting a first new trial will not be disturbed.

2. On another trial, if it appears that the automobile, for the purchase-price of which suit was brought, was sold to the defendants under a contract containing a limited warranty, they can not insist upon ariy warranty other than that embraced in the contract. Cochran v. Jones, 11 Ga. App. 302 (75 S. E. 143). Moreover, if the defendants rely upon an express warr&.,ty, they can not defend upon proof of an implied warranty. Johnson v. Latimer, 71 Ga. 470 (2) ; Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (72 S. E. 40). The evidence was sufficient to raise an issue of fact upon the plea of partial failure of consideration, and did not demand a finding that the machine was not in some respects deficient. Judgment affirmed.