Scott & Co. v. McDonald , 83 Ga. 28 ( 1889 )

Simmons, Justice.

1. The facts of this case will be found in the official report. ' The court below was correct in holding that a juror who had been empanelled and sworn to try the case, and who was unable to agree with his fellow jurors, a mistrial resulting therefrom, was an incompetent juror to try the case when it was again called for trial in the same court. Mayor, etc. v. Goetchius, 7 Ga. 139; Hawkins v. Andrews, 39 Ga. 118.

2. We think the court was right in holding generally that a plea of total failure of consideration could he filed in a case like this, but we think he erred in directing that the plea in this record should he submitted to the jury with the evidence adduced in this case. We do not think the plea filed in the justice’s court in this case is such a plea of failure of consideration as is contemplated by the statute in this class of cases. In our opinion, the only plea of total or partial failure of consideration in such a ease as this is, the plea'that the fertilizer purchased did not contain the ingredients as required by the statute. Code, §§1553 (a), (b). Before any person can legally sell fertilizers in this State, the fertilizer must be inspected by, an officer of the State. It must be branded and tagged, and the brand mqst contain an analysis of the fertilizing properties contained therein, and the law requires that the manufacturer shall guarantee said analysis. When all this is done, the State authorizes the person to sell the fertilizer. It says, if the fertilizer contains these ingredients up to the measure of the guaranteed analysis, it is sufficient. A person who buys a fertilizer after these requirements have been complied with, does so with the knowledge that the law declares it to be a good fertilizer. The law does not require the seller to guaranty its effects upon crops. . It only requires him to warrant that it contains such a per cent, of certain ingredients. The purchaser must determine for himself whether those ingredients will benefit his crops. He purchases it with the knowledge that the State’s officer has inspected it and placed his tag upon it. He purchases it with the knowledge that the manufacturer’s brand is upon it containing the analysis required by law. He purchases it with the knowledge that the. State has licensed it to be sold. After so purchasing, in our opinion, he can only show that the fertilizer is worthless by proving, in case of total failure of consideration, that it did not contain the ingredients guaranteed in the analysis, or in case of partial failure of consideration, that it did not contain as much of the ingredients as the law requires. In order to make out such a plea, it is necessary for him to go further than to show that it had no effect on his crops. He must show by this and .by other proof that it did not contain the ingredients of the guaranteed analysis. If he only shows that it did not have any effect on his crop, that is not sufficient, under the ruling of this court in the case of Hamlin v. Rogers, Worsham & Co., 78 Ga. 631. We have read the evidence sent up in this record, and find that the whole evidence of the defendant in the-court below was as to the effect the fertilizer had upon his crop. If the case were sent back to be tried over, this evidence would not be sufficient, under our view of' the law, to authorize the jury to find a verdict in his favor. Therefore, under the view we take of the law of this case, it was unnecessary to send the case back to have a new trial, although the court erred in not sustaining the motion to strike the juror for cause. Hnder this evidence and our view of the law, any impartial jury would be compelled to find in favor of the plaintiff ; and as litigation must have an end at some time, we, reverse tbe judgment of the court below granting a hew trial,’ and direct that tbe verdict- of tbe jury in- tbe justice’s court be allowed to stand.

Judgment reversed.