Austin & Ellis v. Cox

60 Ga. 520

• Court: Supreme Court of Georgia
• Decided: January 15, 1878
• Status: Published

Opinion

Bleckley, Judge.

1. A pending suit between the plaintiffs and a juror, involving like issues as the one about to be tried, would work disqualification; but a past suit would not. At all events, the latter would not be a principal cause of challenge; it might be cause of challenge to the favor, but no more.

From the language used both in the bill of exceptions and in the motion for new trial, we infer that it did not appear to the court below that the suits between the plaintiffs and the jurors were still pending. We quote first from the bill of exceptions: “ Before proceeding to strike the jury^ plaintiffs’ counsel moved to strike the names of Alexander Dunn and Larkin Harrison, two jurors on the special jury list furnished to the counsel, for cause, upon the ground that plaintiffs had like suits pending against each of said jurors before the present term of the court, in which the same issues were involved as in the case on trial.” Next we quote from the motion for new trial: “ Because the court refuse to allow plaintiffs’ counsel to strike the names of Alexander Dunn and Larkin Harrison, whose names were on the special jury list, for cause, upon the ground that plaintiffs had like suits pending against each of said jurors before the present term of the court, in which the same issues were involved as in the above case.” We can see no indication that the suits against the jurors were still in existence at the time the jurors were challenged; the “plaintiffs had like suits pending against each of said jurors before the present term of the court, in which the same issues were involved.”

2. The note sued on declared that “ this fertilizer is sold under the inspection and analysis of Dr. A. Means, inspector at Savannah, and the Department of Agriculture at Atlanta.” It is contended that this cuts off any defense depending upon warranty of quality, express or implied, and that a total failure of consideration, in that the article was not a fertilizer, had no fertilizing properties, and was wholly worthless, cannot be set up. It is quite improbable that the parties to the note intended the language above quoted to have any such effect as this position ascribes to it. There is certainly no express stipulation that the purchaser of the fertilizer would rely solely on the inspection and analysis referred to ; and a stipulation to that effect is not a necessary implication. The language seems to be a mere affirmation of a fact, with no indication that the one fact is intended to render all other facts immaterial. Suppose it were true that the article had been inspected and analized by the aggregate scientific skill of the universe, and that, nevertheless, it was not a fertilizer, had no fertilizing property, and was wholly worthless, would the inspection and analysis make the article “ merchantable, and reasonably suited to the use intended ?” The inspection and aualysis might be a part of the means, and perhaps the chief part, of proving the very defects alleged. The note does not state what result was arrived at when the inspection and analysis took place. The meaning most probably was, simply, that the sellers of the fertilizer represented in the contract of sale that the article had undergone inspection and analysis by Dr. Means, and by the Department of Agriculture, and that it had thus been ascertained to be genuine, fit for use intended, etc.

We can see no reason for treating all questions as to its quality closed.

3. The evidence in the record is sufficient to warrant the verdict, and no conflict with the law is ^apparent.

Cited for plaintiff in error : 3d Black. Com., 363 ; 7 Ga., 139 ; 32 Ib., 581; 24 Ib., 265 ; 40 Ib., 150 ; 38 Ib., 216; 25 Ib., 494 ; 36 Ib., 652 ; Benj. on Sales, 491; Ib., 461; Id., 462 ; Ib., 479 ; Ib., 480 ; 2 East, 314 ; Chitty on Contracts, (6 ed.), 482-3 ; 6 Taunton, 446; Ib., 484; Code, §2651; 36 Ga., 190 ; 13 Ib., 502 ; Chitty on Contracts, 5 ; 13 Ga., 505 ; 9 Ib., 54; 532 ; 54 Ib., 490-1; Code, §3753.

Judgment affirmed.