Case-Fowler Lumber Co. v. Good Roads Machinery Co. , 21 Ga. App. 717 ( 1918 )

Luke, J.

1. Case-Eowler Lumber Company, on December 5, 1915, purchased a tractor-engine from the Good Roads Machinery Company, paying therefor, on January 17, 1916, the sum of $1,116.67 in cash and giving three promissory notes for $744.44 each, due April 1, July 1, and October 1, 1916. The note due April 1 was paid; the other notes were not paid, and suit was brought to recover judgment on them. The defendant pleaded, among other things, as follows: “Prior to the time when the defendant paid part of the purchase-price for said [tractor-engine], to wit, on January 17, 1916, though defendant had had a little trouble with said machine, plaintiff had promised that it would remedy said trouble, and actually sent a man to the place where said machine was, for the purpose of remedying said trouble. Relying upon said promise and efforts of plaintiff to remedy the trouble, defendant made said settlement in cash and notes on January 17, 1916. Prior to the time when defendant paid to plaintiff the first note due on the purchase-price of said machine, to wit, on or about the first day of April, 1916, though the defendant at that time had had- considerable trouble with said machine, plaintiff had promised that it would remedy said trouble, and actually sent a. man to the place where said machine was, for the purpose of remedying said trouble. Relying upon said promise and efforts of plaintiff to remedy the trouble, defendant paid said note as aforesaid on or about the first -day of April, 1916.” The engine was wholly worthless and not suited for the purposes for which it was bought, etc. Upon demurrer the court struck the plea as being insufficient in law, and rendered judgment for the plaintiff upon the two unpaid notes. Seld, that the court erred in so ruling. Schofield-Burkett Construction Co. v. Rich, 16 Ga. App. 321 (85 S. E. 285); McDaniel v. Mallary Machinery Co., 6 Ca. App. 848 (66 S. E. 146).

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.

Complaint; from Bibb superior court — Judge Mathews. April 33, 1917.

J-Iardeman, Jones, Park & Johnston, Harry S. Strozier, for plaintiff in error. P. B. D’Orr, contra.