Allen v. Young , 62 Ga. 617 ( 1879 )

Bleckley, Justice.

1. In statutory complaint, the writings declared upon, copies thereof being annexed to the declaration, are a part of the pleadings, and must necessarily come to this couit in the transcript of the record. As to them, therefore, it is enough for the bill of exceptions to state that they were introduced in evidence. The writ of error will not be dismissed because they are not again copied, or because their contents do not appear otherwise than from the copies in the pleadings. 10 Ga., 1, (3); 41 Ib., 293.

2. The notes given to the company for the price of the fertilizer having upon their face a stipulation that the fertilizer was purchased “ entirely upon the basis of the analytical standard guarantied by the company, and that I will in no event hola it r'esponsible beyond such standard, nor in anywise for practical results,” the precise right of the purchaser was to receive an article containing the chemical and fertilizing properties enumerated in the guaranty, and these in the proportions and up to the degree of strength held out as a standard. The standard being analytical, the direct means of comparing with it the material received by the purchaser as a fertilizer, would be to analyze one or more samples of the material, either before the mass was used, or if afterwards, with proper preservation in suitable vessels’until the analysis was made. Test or comparison by indirect means might be practicable, too; but if so, the effect on crops would seem to be excluded by the express agreement of the parties, that agreement being that the buyer would not hold the seller responsible “ in anywise for practical results.” If, however, the effect on crops could be considered (in connection with the admission of the seller made at the trial, that a fertilizer coming up to the standard would be a good fertilizer), the manner of cultivation— the accidents of season, the kind of soil, etc., would be material; and without some evidence as to these, the foundation for admitting testimony of actual production, with a view to disparaging the fertilizer, would not be laid. No such evidence was offered, or proposed to be offered.

3. In giving his notes for the price, the buyer having in writing accepted the limited guaranty, and stipulated not to exact anything beyond, parol evidence of other representation or warranty is inadmissible, unless upon the ground of fraud ; and as to that ground, not only must the fraud be pleaded with due certainty, but it must be of a nature to excuse the buyer for having accepted the limited guaranty, instead of standing upon some other express warranty, or upon the general warranty implied in law. Parol evidence that the seller represented or warranted the article to be good, is entitled to no effect; for it is useless if it does not conflict with the written acceptance of limited guaranty, and inadmissible if it does. It should be observed that the defendant did not set out in any of his pleas, what ingredients the company’s analytical standard embraced, or in what proportions they were combined. Nor did any of the pleas set forth the actual ingredients contained by the fertilizer received, or even one of them. The very truth is, that the defendant endeavored to escape the consequences of having accepted a limited warranty, without entering into particulars, and by a few vague and sweeping generalities. He should have furnished the court and jury by his pleadings and evidence, with the standard to which his contract referred, and then should have shown wherein the commodity wliich was delivered to him varied from that standard, or fell below it.

Judgment affirmed.