Evans & Tate v. Premier Refining Co. , 31 Ga. App. 303 ( 1923 )

Broyles, C. J.

(After stating the foregoing facts.) The defendants, having pleaded a written contract which amounted to an express warranty, could not rely upon an implied warranty, and they could not show that the lubricant was worthless unless they also showed that they had complied with the conditions named in the contract (International Harvester Co. v. Dillon, 126 Ga. 672, 55 S. E. 1034), and the undisputed evidence showed that the defendants had not complied with the express stipulation in the contract that no claim for replacing broken gears could be allowed them unless their account with the plaintiff was paid when due. Nor can we agree with the contention of defendants’ counsel that the plaintiff could not recover the purchase price of the lubricant sold to the defendants, for the reason that the plaintiff had no license as an insurance company to transact business in this State. We do not think that the contract of indemnity or of insurance entered into in this ease is a contract of insurance, or that the plaintiff thereby became an insurance company, within the meaning of the statute (Park’s Civil Code, § 2415 a).

Under the pleadings and the evidence submitted, the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.