King v. Dobbs , 1923 Ga. App. LEXIS 497 ( 1923 )

Bell, J.

This was an action in a justice’s court for the recovery of the sum of $62.50. The plaintiff had paid to the defendant a like sum as the purchase-money of a cow, a part of which was paid on delivery of the property, and the remainder “ a -few days ” thereafter. It indisputably appears in the evidence that the transaction was consummated by the plaintiff in his own name, but that he was really an agent for his. wife, and that all of the money paid belonged to her. The conclusion is demanded also that the property was possessed of serious defects. There is some evidence, though very slight, as to an express warranty or a representation, and also evidence that the defect was latent and not discoverable by ordinary care until after the remainder of the purchase-money was paid. Some time subsequently to the sale the principal vendee sought to rescind the transaction and tendered the property back, but the tender was refused. There is no evidence whatsoever that the property was worthless, and no data was given to the jury by which they might have determined the extent to which the consideration had failed, if the character of the action was 'such as to involve the question of consideration. The jury-trying the case returned a verdict in favor of the plaintiff for $60, and said in their verdict that the defendant should take back the property. The defendant excepts to the overruling of a certiorari.

The above statement is made in view of the answer of the magistrate, which is controlling upon review regarding the evidence heard upon the trial. The record does not show a copy of the summons, or suit, and it is impossible to determine just what was the nature of the action. If it was a suit for the recovery of the purchase-money as for money had and received, following an ex parte rescission for actual fraud, the verdict was without sufficient evidence to support it, under the rulings announced in headnotes 1, 2, and 3. If the suit was for the breach of warranty, either express or implied, or for the recovery of damages for fraud, the verdict was likewise illegal, under the rulings of headnote 3 and the authorities there cited. For these reasons, but no others, the judgment overruling the certiorari must be reversed.

Other contentions of the plaintiff in error are sufficiently disposed of in the headnotes.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.