Aultman & Co. v. Mason ( 1889 )

Simmons, Justice.'

This was an action to recover a balance due on certain promissory notes given for the purchase price of an engine and saw-mill. The defendant filed two pleas to the action : (1) the plea of the general issue ; and (2) the plea of breach of warranty and failure of consideration. On the trial of the case, the jury returned a verdict for the defendant. The plaintiffs moved for a new trial, which motion was overruled by the court, and they excepted.

The grounds of the motion for a new trial are as follows : (1-2) that the verdict is contrary to law and the evidence; (3) that the court refused to strike the defendant’s plea of breach of warranty and failure of consideration, on the ground that such plea contradicted and added to the contract between the parties without any allegation of fraud, accident or mistake; (4) that the court erred in charging the jury that they should allow, by way of recoupment against the notes sued on, the damage or expense incurred by defendant by reason of any breach of warranty on the engine, although separate notes were given for the saw-mill, and no breach of warranty or failure of consideration was alleged or proved as to the saw-mill.

1. We have read the testimony in this ease as sent up in the record, and while we would not have found as the jury did, taking the whole of the testimony into consideration, yet if the jury believed the defendant’s witnesses, as under our law they had a right to do, there was sufficient evidence to' authorize their finding; the trial judge was satisfied therewith, and we cannot say that he abused his discretion in refusing to grant anew trial on the ground that the verdict was contrary to the evidence.

2. While we do not decide that the special plea filed in this case was a plea of breach of warranty, yet as it was so recognized by the court below and by the counsel for the plaintiffs, and as he alleges in his motion for a new trial that it was a plea of breach of warranty, we will so treat it for the purpose of this case. Treating it thus, we hold that the court did not err in refusing to strike said plea upon the ground complained of in this part of the motion for a new trial. A plea of breach of warranty and'of failure of consideration does not add to or vary the contract between the parties ; nor is it necessary to allege therein fraud, accident or mistake. While “it is an undoubted rule of the common law that parol contemporaneous evidénce shall not be received to vary or contradict a written contract, this rule does not preclude proof between proper parties, to negative the presumption which the law raises, that a note or bill is founded on a valuable consideration. Nor does it stand in the way of parol evidence to contradict an express and even specific admission in the paper of a consideration. It may be shown that there was no consideration, or a different one.” 2 Suth. Damages, 134. “The -consideration being open to inquiry, so far as the promise to pay depends upon its existence, continuance or amount, such promise may be indirectly varied and controlled by parol evidence; not by showing that a different promise from the written one was made, but that it is different in legal effect, as a consequence of a want, cessation or shrinkage of the consideration by evidence that the consideration implied had no existence ; that it did not continue, or was, or has become, deficient in amount. The promise may be thus altogether undermined, postponed or reduced. A different agreement cannot.be shown from that expressed in the note.” Ibid. 136. See Code, §3471, 2748, 2857; Knight v. Knight, 28 Ga. 165 ; Butts v. Cuthbertson et al., 6 Ga. 166; Finney v. Cadwallader, 55 Ga. 75.

3. Nor was there any error in the charge complained of in the fourth ground of the motion. The purchase of the engine and saw-mill was one contract, and not two separate and distinct contracts, as claimed by the plaintiffs in error, although the notes were given separately for the engine and for the saw-mill. Being one contract, if there was an express warranty made by the vendor and that warranty had failed, the defendant had a right to have his damages, and the necessary expenses sustained by him by reason of the breach of warranty, deducted from the notes. 55 Ga. 75, supra.

Judgment affirmed.