Thompson v. Cordele Motor-Car Co.

105 S.E. 620, 26 Ga. App. 139, 1921 Ga. App. LEXIS 28

Opinion

Jenkins, P. J.

1. A plea of total failure of consideration includes a partial failure, and under such a plea a verdict allowing a partial abatement of the purchase price is permissible. Morgan v. Printup Bros. & Pollard, 72 Ga. 66.

2. Where, in defense to a suit against the maker of a purchase-money note which does not purport to contain the terms of sale, a plea of total failure of consideration is entered, in which a breach of contemporaneous express representations and warranties governing the transaction are set up, and the defendant introduces evidence in support of the plea, it is not improper for the trial judge to charge the law governing breach of express warranties, since an express warranty excludes implied warranties. Toller v. Hewitt, 12 Ga. App. 496 (77 S. E. 650).

3. The evidence authorized the verdict.

Judgment affirmed.

Stephens and Hill, JJ., concur.