Smith v. Hodges

Court of Appeals of Georgia

Smith v. Hodges

70 S.E. 195, 8 Ga. App. 785, 1911 Ga. App. LEXIS 145

CourtCourt of Appeals of Georgia

DecidedFebruary 15, 1911

Docket2585

StatusPublished

Cited by8 cases

This text of 70 S.E. 195 (Smith v. Hodges) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Hodges, 70 S.E. 195, 8 Ga. App. 785, 1911 Ga. App. LEXIS 145 (Ga. Ct. App. 1911).

Pincite

Opinion

Powell, J.

1. The evidence is such as to sustain the verdict.

2. Under the practice in this State, even though the defendant files affirmative pleas, the plaintiff is not obliged to file a replication in order to introduce evidence tending to contradict or to avoid the matter uset up in the pleas. The evidence admitted in this case was not objectionable on the ground that there was no pleading to authorize it. It was circumstantial in its nature, and tended to raise an inference contradictory of the matters pleaded by the defendant.

8. While a plea of total failure of consideration includes also, by implication, . partial failure of consideration, to the extent that, where the proof so authorizes, the jury may diminish the plaintiff’s demand, rather than disallow it entirely, still the exception made in the present case as to the judge’s charge on this' subject is not well taken. The court correctly charged the jury that the defendant’s plea was a plea of total failure of consideration on account of the breach of warranty asserted, but he also told them that if they should find that the defendant was entitled to anything off the purchase-price, on account of the breach of warranty, they were to arrive at the amount to be allowed in abatement of the purchase-price by calculating the difference between the value of the tiling purchased, if it had come up to the warranty, and ‘whab its value was with such defects as were found to exist in it, so far as they were covered by the warranty. Judgment affirmed.

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Powell, J.

1. The evidence is such as to sustain the verdict.

2. Under the practice in this State, even though the defendant files affirmative pleas, the plaintiff is not obliged to file a replication in order to introduce evidence tending to contradict or to avoid the matter uset up in the pleas. The evidence admitted in this case was not objectionable on the ground that there was no pleading to authorize it. It was circumstantial in its nature, and tended to raise an inference contradictory of the matters pleaded by the defendant.

8. While a plea of total failure of consideration includes also, by implication, . partial failure of consideration, to the extent that, where the proof so authorizes, the jury may diminish the plaintiff’s demand, rather than disallow it entirely, still the exception made in the present case as to the judge’s charge on this' subject is not well taken. The court correctly charged the jury that the defendant’s plea was a plea of total failure of consideration on account of the breach of warranty asserted, but he also told them that if they should find that the defendant was entitled to anything off the purchase-price, on account of the breach of warranty, they were to arrive at the amount to be allowed in abatement of the purchase-price by calculating the difference between the value of the tiling purchased, if it had come up to the warranty, and ‘whab its value was with such defects as were found to exist in it, so far as they were covered by the warranty. Judgment affirmed.

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Bluebook (online)

70 S.E. 195, 8 Ga. App. 785, 1911 Ga. App. LEXIS 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hodges-gactapp-1911.

Opinion

1. The evidence is such as to sustain the verdict.

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