Byrd v. Campbell Printing Press & Manufacturing Co.

Lumpkin, Justice.

The writer has prepared and handed to the reporter a statement of the facts of this case.

1. It is perfectly clear from the evidence that Byrd distinctly declined to purchase the press upon the terms originally offered him in writing by the company, and there is no evidence to show that he purchased it under any express warranty at all. ' On the contrary, his own letter containing a proposition to purchase stipulated for no warranty of any kind. It is true he sought, by amendments, to set up that this letter, by reason of a mutual mistake of himself and the company’s agent, did not contain the proposition he really intended to make, and that this -was well known to both the agent and the company; but these amendments were not allowed by the court, and its refusal to allow them will be hereinafter discussed. Taking the case as it stands, there was no express warranty, and of course there could be no breach of one or any failure of consideration, total or partial, in consequence of such alleged breach.. This much of the defence, therefore, falls to the ground.

The next inquiry is, could Byrd'defend on the ground that there was a breach of the warranty implied by the law that the article was merchantable and reasonably suited to the use intended? We do not think, in view of the facts of this case, that he can be protected under the provisions of section 2651 of the code relating to implied warranty. That section declares “the purchaser must exercise caution in detecting defects,” and the seller will not be held to have warranted the article to be merchantable and reasonably suited to the use intended, when, from the nature of the transaction, such warranty is excepted. This is plainly and manifestly such a case. After declining' to purchase under an agreement containing an express warranty limiting the seller’s liability to the terms thereof and excluding any other guarantee, Byrd purchased the press on terms proposed by himself after he had tiled it, found out all about it, and detected, as he testifies, numerous defects in it. He does state that he discovered some defects after he had given the notes, of which he did not know before; but there can be no doubt that he had the fullest and most ample opportunities to test, examine and thoroughly acquaint himself with this machine, and that he availed himself of them to his entire satisfaction. Taking his evidence as a whole, the only fair and reasonable conclusion from it on this subject is, that he had full and complete knowledge of the press and all its defects of any consequence before he gave his notes for its purchase, and the very terms on which he offered to buy it, and did buy it, show most clearly that he sought and obtained material advantages because of the defects of which he complained. These defects were, so far as he is concerned, patent; and buying with a knowledge of them, he has. no right to invoke the law of implied warranty. A man has a right to purchase an imperfect or defective article, if he chooses, and so doing is an every-day occurrence; but when one does this with his eyes open, and no fraud has been practiced upon him, he cannot be heard to say the law required the seller to warrant against the very defects of which he (the purchaser) was fully aware, especially when, because of them, he secures a better bargain than he would otherwise have obtained.

The case of Cochran v. Jones, 85 Ga. 678, is entirely different from the present one. The machine sold in that case had certain patent defects which the seller pointed out, representing that when they were repaired, the machine would do good work. The purchaser gave his notes before trying the machine or having an opportunity to do so, repaired it as directed, and then found it would not satisfactorily perform the work for which it was designed, because of latent defects which had not been disclosed to him and which he could not have discovered by the exercise of ordinary diligence. This court simply held that from the nature of the transaction, the law did not raise against the seller an implied warranty that the machine in the condition it was when sold was merchantable and reasonably suited to the use intended, but did raise such a warranty that it would become so when the repair’s were made. The ruling, therefore, really supports that made in the present case, to the effect that the doctrine of implied warranty will not protect a purchaser as to patent defects, or defects of which he has full knowledge; and this, we apprehend, is well-settled law.

2. If Byrd had any meritorious defence at all in this case, it was that which he undertook to set up in the amendments to his pleas which the court refused to allow. If the evidence admitted, that rejected, and the offered amendments are all considered together, the amendments are intelligible; but if the latter are considered in connection with the pleadings alone, and without reference to the evidence, it would be impossible to understand, their meaning. The defects in them have been sufficiently indicated in the head-note. In passing upon the sufficiency of a plea, a court has no authority to look beyond it into the evidence, or elsewhere, for light, but must determine whether or not upon its face it sets forth a legal defence. The amendments under consideration were certainly lacking in both clearness and certainty, not only as to details, but as to substance, and for this reason the trial judge might have rejected them. He rejected them because, in his opinion, taking them as expressing all he understood them as intending to express, they did not present a legal defence. Upon the correctness of this conclusion we are not at liberty to pass, because it is not permissible, as already observed, to consult the evidence, whether admitted or rejected, for the purpose of testing the sufficiency of a plea. It must stand or fall upon its own allegations without extrinsic aid of any kind.

3. The motion for a new trial complains of various rulings of the court in rejecting evidence. In so far as this evidence tended to support the allegations in the pleas which were not allowed, the court was manifestly right in rejecting it. In so far as it tended to establish the other pleas, the refusal to admit it was not error, because, as we have shown, none of the defences made were, under the undisputed facts of this ease, good in law. A verdict for the plaintiff for the full amount of the note sued on was the only legal result from the pleadings and evidence as they stood. Consequently, there was no error in so directing, and of course, none in refusing to grant a new trial. Judgment affirmed.