Porter Fertilizer Co. v. Brewer

136 S.E. 477, 36 Ga. App. 329, 1927 Ga. App. LEXIS 60

Opinion

Bell, J.

Porter Fertilizer Company brought suit against E. C. Brewer as principal, and D. F. Small as security, upon a promissory note payable to the plaintiff, and containing with reference to its consideration the following statements: “The consideration of this note is commercial fertilizer sold me by Porter Fertilizer Company. They expressly refuse to make any warranty of the same, or any representation as to its quality or value, leaving me to rely solely upon the fact that the laws of this State have been complied with. I accept said fertilizer on these terms. . . I buy this fertilizer for my own use, or to be used on lands cultivated by me.” The defendant pleaded that the note “was wholly and totally without any consideration whatever, and that no consideration moved between the parties thereto.” The court overruled the plaintiff’s motion to strike the defendant’s answer for insufficiency; and the trial resulted in a verdict in favor of the defendant. The court denied the plaintiff’s motion for a new trial, and the plaintiff excepted, assigning error upon'the refusal of this motion and also upon the previous judgment overruling the motion to strike the defendant’s answer, to which judgment exceptions had been preserved pendente lite. The other facts, including those set up in the special grounds of the motion for a new trial, are sufficiently shown in the headnotes. Under the rulings therein made, the court erred in the admission of testimony, and also in giving a certain charge to the jury. For these reasons the plaintiff was entitled to a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.