Hamlin v. Rogers, Worsham & Co. , 78 Ga. 631 ( 1887 )

Hall, Justice.

This was a suit on a note given for the price of fertilizers sold by the plaintiffs to the defendant; and besides the statutory warranty that the fertilizer comes up to the chemical analysis branded on the sacks, the note contained a stipulation that the seller should not be responsible for practical results, or for the effect off the fertilizer upon crops. To this suit the defendant pleaded that the. articles sold did not contain the elements and ingredients indicated by the analysis, and that the sacks in which it was packed, although branded, were not tagged. On the trial, proof was offered to show that it failed to .benefit the defendant’s crops, although the crops were properly cultivated, the soil on which they were planted suitable and the seasons propitious. This was offered as evidence to establish the absence of the elements' and ingredients indicated by the analysis and brand; one of the plaintiffs who testified in the case having sworn, in rebuttal and on his cross-examination, that if the fertilizer was as represented by the analysis on the sacks, it “would have benefited the crops, with good seasons.” There being no other testimony as to these facts, the evidence thus offered, on objection of plaintiffs’ counsel, was rejected, and exception was taken by defendant to its rejection. The trial resulted in a verdict for the plaintiffs, and the defendant made a motion for a new trial on various grounds, which was overruled. To the judgment overruling this motion, he prosecuted his writ of error to this court, and that makes the questions we are to determine. The principal ground insisted upon for the reversal of this judgment is embodied in the 3, 4 and 5 grounds of the motion, and relates to the rejection of this testimony.

1. All that the party selling is required by law to guarantee is, that the fertilizer contains substantially the ingredients indicated by analysis attached to it. The party may or may not guarantee its effects upon crops. In this instance, he refused to make any such guaranty, and the purchaser expressly stipulated to take the fertilizer without regard to its effects upon crops. Parties have a right to make their own bargains, provided there is nothing in them contravening any requirement of the law. Under the limited guaranty contained in this contract, and that imposed by law, the defendant could have shown that the fertilizer he purchased did not contain the ingredients and elements indicated by the analysis made by the State chemist and branded on the sacks. The evidence offered and rejected would not per se have shown that the fertilizer was deficient as to any of such ingredients; without being offered in aid of other testimony to establish this fact, it would be immaterial. At best, it is only adminicular in its character. Where, for instance, another analysis is given or offered in evidence to show that the fertilizer does not come up to the standard laid down by the State chemist, those facts may be used in aid of such other analysis; but here there was nothing which the evidence offered could sustain. This is the extent to which former decisions of this court have gone. Jackson vs. Langston & Crane, 61 Ga. 392; Allen vs. Young, 62 Ga. 617; De Loach vs. Hardee's Son & Co., 64 Ga. 94; Code, §1553(b) ; Acts 1881-2, p. 129.

2. The sixth ground of the motion sets out the entire charge of the court. The seventh ground seems to be rather a specification of error in the charge as set forth 5 than an independent ground complete in itself on which the new trial should be granted. It amounts to this, that the charge is deficient, in that the court failed to explain to the jury what constituted an inspection of fertilizers under the law. It does not appear that the attention of' the court was called to this subject, or that he was requested to give the instruction which, it is alleged, he omit, ted, nor is it made manifest to us that if such instructions had been given, what their pertinency and relevancy would have been. The giving or withholding them could not, so far as we can see, have affected the result of the case. There is no merit in that ground.

3. The defendant pleaded that the sacks containing the fertilizer were not, at the time of .the sale, tagged according to law. He testified on the trial that some four or five of them — there being thirty in all — were not tagged; but at what time this failure to tag was discovered does not appear. It may, for aught that appears to the contrary, have occurred that after the sale and delivery, they were detached from the bags. One of the plaintiffs swears they were all properly tagged and branded when sold. We think, therefore, under the circumstances, that the court committed no error in refusing to charge the following request made by the defendant: “ If you believe from the evidence that the fertilizer did not have inspector’s tags on the sacks at the time of the sale, then the plaintiffs cannot recover.” The request, if made in writing and legal in a proper case, considering the vague and indefinite character of the testimony, was inapposite, and should not have been given; besides, where the analysis is branded on packages, we are not satisfied that they should also be tagged to render the sale legal; the tags afford evidence that the inspection fees had been paid. They certainly show this, but whether their absence has the effect of showing that the sale was illegal, is questionable.

There is evidently nothing in the first and second grounds of the motion. The verdict was imperatively demanded by the evidence, which harmonized in everything, except as to the few sacks which the defendant testified were not tagged, and even upon that point, it could hardly be said to be conflicting.

Judgment affirmed.