Doss v. Selman

167 S.E. 537, 46 Ga. App. 285, 1933 Ga. App. LEXIS 30

• Court: Court of Appeals of Georgia
• Decided: January 21, 1933
• Docket: 22512
• Status: Published

Opinion

Stephens, J.

In a contract for the sale of mules, a recital or representation as to their ages is not a warranty, where the contract expressly provides that the seller guarantees “title only.” The contract, therefore, excludes any warranty as to the age of the mules. Purser v. Rountree, 142 Ga. 836 (83 S. E. 958); Harrell v. Holman, 21 Ga. App. 159 (93 S. E. 1018). In a suit by the seller against the purchaser, to recover the purchase price, a plea which alleges that the plaintiff falsely and fraudulently misrepresented the ages of the mules, when in fact the mules were much older, and, by reason of their ages, were worthless, and that therefore the consideration for the contract had totally failed, set out no breach of a valid warranty; and since it appears nowhere from the plea that the defendant, upon the discovery of the alleged fraud, offered to rescind the contract by returning the mules, which he had in his possession, the plea failed to set out any defense on account of fraud. The plea, therefore, was properly stricken, and the rendition of a verdict and judgment for the plaintiff, was not error.

Judgment affirmed.

Jenkins, P. J., and Sutton, J., eoneur.