McNeel v. Smith

Supreme Court of Georgia

McNeel v. Smith

32 S.E. 119, 106 Ga. 215, 1898 Ga. LEXIS 63

CourtSupreme Court of Georgia

DecidedDecember 16, 1898

StatusPublished

Cited by10 cases

This text of 32 S.E. 119 (McNeel v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNeel v. Smith, 32 S.E. 119, 106 Ga. 215, 1898 Ga. LEXIS 63 (Ga. 1898).

Pincite

Opinion

Lewis, J.

We do not think there was any ambiguity whatever as to the meaning of the contract sued on in this case. The notes, by stipulating that the seller did not warrant the health, life, and soundness of the mules, expressly excepted such warranty from the contract, and the parties manifestly intended that the vendor should be relieved from any implied warranty which the law might otherwise have imposed upon him on account of any defects growing out of unsoundness of the mules at the time of the sale. To have allowed, therefore, a defense based upon a verbal agreement between the parties to the effect that the vendor contracted to deliver the mules to the defendant safe and well, would have permitted the defendant to contradict by parol evidence the express and unambiguous provisions in his written contract. § 3555 of the Civil Code declares that, “If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects ; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants- — -1. That he has a valid title and right to sell. 2. That the article sold is merchantable, and reasonably suited to the use intended. 3. That he knows' of no latent defects undisclosed.” It is obvious from the language used in the statute, that the parties to the contract can expressly except either one or all of these implied warranties. In this case the first was not excepted, but any defense founded either upon the second or third growing out of unsoundness in the mules is expressly provided against. The plea in this case, therefore, setting up an agreement and condition not only not contained in the notes but in direct contradiction of the written contract, there was no error in refusing to admit testimony thereunder, and in directing a verdict for [217]*217the plaintiff. Goodman v. Fleming, 57 Ga. 350; Jackson v. Langston, 61 Ga. 392-3; Martin v. Moore, 63 Ga. 531.

Judgment affirmed.

All the Justices concurring.

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Lewis, J.

We do not think there was any ambiguity whatever as to the meaning of the contract sued on in this case. The notes, by stipulating that the seller did not warrant the health, life, and soundness of the mules, expressly excepted such warranty from the contract, and the parties manifestly intended that the vendor should be relieved from any implied warranty which the law might otherwise have imposed upon him on account of any defects growing out of unsoundness of the mules at the time of the sale. To have allowed, therefore, a defense based upon a verbal agreement between the parties to the effect that the vendor contracted to deliver the mules to the defendant safe and well, would have permitted the defendant to contradict by parol evidence the express and unambiguous provisions in his written contract. § 3555 of the Civil Code declares that, “If there is no express covenant of warranty, the purchaser must exercise caution in detecting defects ; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants- — -1. That he has a valid title and right to sell. 2. That the article sold is merchantable, and reasonably suited to the use intended. 3. That he knows' of no latent defects undisclosed.” It is obvious from the language used in the statute, that the parties to the contract can expressly except either one or all of these implied warranties. In this case the first was not excepted, but any defense founded either upon the second or third growing out of unsoundness in the mules is expressly provided against. The plea in this case, therefore, setting up an agreement and condition not only not contained in the notes but in direct contradiction of the written contract, there was no error in refusing to admit testimony thereunder, and in directing a verdict for [217]*217the plaintiff. Goodman v. Fleming, 57 Ga. 350; Jackson v. Langston, 61 Ga. 392-3; Martin v. Moore, 63 Ga. 531.

Judgment affirmed.

All the Justices concurring.

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Bluebook (online)

32 S.E. 119, 106 Ga. 215, 1898 Ga. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneel-v-smith-ga-1898.

Opinion

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