Addison v. Cowart

158 S.E. 804, 43 Ga. App. 365, 1931 Ga. App. LEXIS 365

• Court: Court of Appeals of Georgia
• Decided: May 15, 1931
• Docket: 21052
• Status: Published

Opinion

Jenkins, P. J.

“A plea of total failure of consideration includes within its terms the defense of partial failure of consideration, but the defendant can have no abatement from the purchase-price on account of a partial failure of consideration, unless he furnishes to the jury sufficient data to enable them to estimate with reasonable certainty the amount of the abatement.” Crouch v. Spooner, 9 Ga. App. 695 (2) (72 S. E. 61).

2. In the instant suit on a promissory note given for the purchase-price of a tractor, where the defendant pleaded a total failure of consideration and the breach of certain warranties, while there was evidence tending to establish the defect in the machine, alleged by the defendant, no proof was submitted as to the cost of making the necessary repairs, or as to the value of the machine in its alleged defective condition. Consequently, there was no evidence from which the jury might, with reasonable accuracy, have assessed the amount of the diminution; and the court did not err, therefore, in failing to charge the jury upon the defense of a partial failure of consideration.

3. The evidence authorized the verdict in favor of the plaintiff.

Judgment affirmed.

Stephens and Bell, JJ., concur. P. Z. Oeer, for plaintiff in error. N. L. Stapleton, contra.