Colt Co. v. Armstead

135 S.E. 317, 36 Ga. App. 64, 1926 Ga. App. LEXIS 766

• Court: Court of Appeals of Georgia
• Decided: October 29, 1926
• Docket: 17157
• Status: Published

Opinion

Belu, J.

The J. B. Colt Company brought suit against D. J. Armstead for the purchase-price of a generator and appurtenances designed for use as a home lighting plant. The defendant pleaded that the consideration had failed totally, in that the property was worthless. The jury found a general verdict for the defendant, and the plaintiff excepted to the overruling of its motion for a new trial.

We think the court erred in refusing the motion. The plea of total failure or consideration was not sustained unless the evidence showed that the plant was worthless for any purpose. Harmon v. Block, 32 Ga. App. 700 (1) (124 S. E. 548). The evidence disclosed that the property was defective and authorized the inference that it was worthless in its existing condition; but the undisputed testimony, further showed that with a small expenditure of money, far less than the purchase-price, it could be repaired and made to perform the work for which it was intended. In this state of the evidence, the general verdict in the defendant’s favor was unauthorized. See, in this connection, Trippe v. McLain, 87 Ga. 536 (13 S. E. 523); Felder v. Neeves, 36 Ga. App. 41 (135 S. E. 219); Thompson Oil Mill Co. v. Murray, 19 Ga. App. 137 (91 S. E. 217); Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427); Colt Co. v. Pickron, 32 Ga. App. 715 (3) (124 S. E. 550); Colt Co. v. Bridges, 34 Ga. App. 422 (129 S. E. 904); Colt Co. v. Bridges, 162 Ga. 154 (132 S. E. 889); Colt Co. v. Mallory, 35 Ga. App. 289 (133 S. E. 55); Colt Co. v. Hiland, 35 Ga. App. 550 (134 S. E. 142).

The charge of the court was inaccurate, though perhaps not materially erroneous, under the facts appearing.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.