Mock v. Kemp

87 S.E. 608, 17 Ga. App. 448, 1916 Ga. App. LEXIS 1009

• Court: Court of Appeals of Georgia
• Decided: January 7, 1916
• Docket: 6553
• Status: Published

Opinion

Wade, J.

1. In the written contract of sale, embraced in the note sued on, there was an express agreement by the purchaser to “waive all failure of consideration; ” and hence no defects in the horse for which the note was given could be pleaded by way of defense.

2. While fraud voids all contracts, a plea setting up an undisclosed latent defect in a horse would not show such legal fraud as could properly be pleaded against a written contract covering its sale, by which in

, effect the vendor declines to warrant the soundness of the animal soldv No confidential relation between the parties is alleged, and no misrepresentation was made as to the precise contents of the contract between them. The contract is apparently complete in all its terms, and additional representations at variance therewith can not be ingrafted thereon by parol.

3. The trial judge did not err in sustaining the demurrer to the plea and in thereafter entering up judgment against the defendant.

Judgment agirmed.

The plaintiffs moved to strike the plea, because it set forth no valid defense, and because “the note sued on expressly provides that the plaintiffs made no guarantee and that defendant waived all failure of consideration, and the allegations set forth in said answer will vary the terms of a valid written instrument, and constitute no good defense in law, and are in effect a plea of failure of consideration.”

J. W. Overstreet, for plaintiffs in error,

cited: 134 Ga. 288; 92 Ga. 279; 2 Ga. App. 57; 3 Ga. App. 588, 761; 10 Ga. App. 362.

White & Lovett, contra,

cited (in addition to eases cited above) : 142 Ga. 836; 137 Ga. 602; 121 Ga. 381; 112 Ga. 319; 110 Ga. 853; 109 Ga. 446; 106 Ga. 215; 60 Ga. 384; 4 Ga. App. 90; 5 Ga. App. 251, 385, 392; 11 Ga. App. 302; 14 Ga. App. 84 (3); 15 Ga. App. 62; 16 Ga. App. 39.