1. Where the defendant admitted a prima facie case in favor of the plaintiff and admitted as true all the allegations of the petition, the judge did not err in overruling the general grounds of the motion for a new trial.
2. Under the pleadings, any error on the part of the trial judge, in refusing to allow the defendant to introduce evidence in support of the allegations of his plea of confession and avoidance and in directing a verdict in favor of the plaintiff for the amount of the repairs to the machinery, was harmless to the defendant.
3. Under the allegations of the amended answer, the defendant was entitled to recover $540.15, or to a credit of this amount on the plaintiff's claim against him, and the court erred in refusing to allow the defendant to introduce evidence in support of this portion of his plea and answer and in directing a verdict against him as to same. *Page 316
4. For the reason assigned in division 3 of the opinion, the judge erred in overruling the motion for a new trial. DECIDED DECEMBER 17, 1947. B. E. Skinker sued Stephen E. Gill in the City Court of Decatur, seeking to recover damages of $6413.65 by reason of an alleged breach of warranty for certain machinery purchased by the plaintiff from the defendant. The petition alleged: that the plaintiff purchased this machinery on or about March 13, 1944, from the defendant in Atlanta, Georgia; that the defendant represented that the machinery was reconditioned and in perfect shape, and was merchantable, reasonably suited to the use intended, and had no latent defects undisclosed; but that the machinery was not in perfect shape, was not reasonably suited to the use intended, and was in a defective condition in certain specified ways; that the defendant shipped this machinery to the plaintiff in Washington, D.C.; that upon the arrival of the machinery in Washington, D.C. it was necessary for the plaintiff to ship it to Baltimore for reconditioning in order to put the same in usable condition; that the cost of shipping the machinery to Baltimore to have it repaired and the cost of the repairs and returning the machinery to the plaintiff was $2544.82; that the plaintiff was engaged in coal mining in West Virginia, and the War Labor Board was anxious for him to acquire said machinery; that the defendant knew that it was necessary for the plaintiff to have said machinery to use in his mining operations, and warranted the machine to be in reasonably usable condition; that the plaintiff relied upon the representations that the equipment was rebuilt and in perfect condition and immediately suitable to use in said coal-mining operations, and was induced to make the purchase of said machine by reason of the defendant's representations; that as a result of the defective condition of the machinery, the plaintiff could not at once use the same in connection with his coal-mining operations until it had been repaired, and was further damaged in that he lost the use of the machine from March 31, 1944, through July 13, 1944, and was therefore entitled to recover the reasonable rental value thereof, which amounts to $4205.83; that the plaintiff, while the machine *Page 317 as being repaired, was forced to rent another similar machine at a cost to him of $1225 per month, and was required to pay the shipping charges on the same, amounting to $450; that the defendant voluntarily forwarded to the plaintiff a check for $787, representing an overcharge on the machine, and giving the defendant credit for this check; and that the total amount of damage to the plaintiff amounts to $6413.65. The defendant was notified to produce certain letters and telegrams to be used as evidence by the plaintiff. The prayers of the petition were for process and for judgment against the defendant in the sum of $6413.65.
The defendant answered, substantially denying the allegations of the petition, and set out that he acquired the equipment for the plaintiff and shipped the same to him at his request; that the plaintiff stated that, if the defendant would ship the equipment to him for inspection, if he found any slight defects he would repair same in his shop, but, if there were found any unusual defects in the equipment or the same was in unusually bad condition, that he would ship the same back to the defendant and pay the freight thereon both ways; that the defendant shipped the machinery to the plaintiff and, after inspection by the plaintiff, the plaintiff paid for the equipment.
By amendment, the defendant alleged that the selling price of the machinery was $11,500, which was thought to be 85 percent of the cost of the machine when new; that he was afterwards told that he had overcharged the plaintiff in the sum of $787, and he sent the plaintiff his check for this amount; that it was later discovered, and that it was now conceded by all parties, that the selling price of the machinery when new was $13,239, and that 85 percent of that amount was $11,253.15, and in sending the check to the plaintiff for $787, there was an overpayment of $540.15, for which judgment was sought together with interest thereon at 7 percent.
On the trial, the defendant filed a plea designated as one in confession and avoidance, whereby he admitted all the allegations of the plaintiff's petition, and set out as an affirmative defense that the contract between the parties was executory until said machine was tested and tried out by the purchaser as to its ability to perform and its suitability for the purpose for which *Page 318 it was purchased; that, when said test was made and the alleged defects discovered, the plaintiff did not ship the machinery back to the defendant, as he had promised to do, but without notifying the defendant shipped the same to Baltimore and incurred the repair bill set out in the petition; that the express warranty under the O. P. A., which obtained when the sale was made, bound the defendant to make the machine perform for 60 days, and had the defendant been allowed to repair the machine in the shop of Hudson Sons, from whom he purchased it, the cost of making the repairs necessary for the machine to operate the 60 days of the warranty would probably have been less than the amount incurred by the plaintiff.
Upon this plea being filed, the trial judge refused to allow the defendant to introduce any evidence in support of the same or in support of his answer, and directed the jury to return a verdict for the plaintiff for $2544.82 (the cost of having the machine repaired in Baltimore and the freight on it from Washington to Baltimore and return). The defendant's motion for a new trial was overruled, and he excepted. 1. The defendant having admitted a prima facie case in favor of the plaintiff, and having admitted as true all the allegations of the plaintiff's petition, the court did not err in overruling the general grounds of the motion for a new trial.
2. In special ground 4 of the motion, error was assigned on the action of the court in directing a verdict for the plaintiff and in refusing to allow the defendant to introduce evidence in support of the allegations of his plea of confession and purported avoidance. In this plea, the defendant admitted as true all the allegations of the petition, including the allegations of the alleged warranty and its breach, and that the cost of the repairs was reasonable and necessary to make the machine conform to the warranty. While the defendant contends that, under the terms of the warranty, the plaintiff should have returned the machine to him in Atlanta so as to allow him to make the repairs necessary to good performance, he does not show any injury by *Page 319 this failure. The only allegation of injury to the defendant by reason of the alleged failure of the plaintiff to return the machinery to him was that, if the defendant had "been allowed to repair the machine in the shop of Hudson Sons, from whom he purchased it, the outlay to make it operate for the 60 days of the warranty would probably have been much less than the amount said to have been spent in Baltimore." This was not an allegation that the machine could have been repaired in Atlanta at a cost to the defendant less than that incurred in Baltimore. The defendant does not allege as a fact that the machine could have been repaired here for less than it was repaired in Baltimore, but he admits in his plea that the repairs were necessary and that the amount charged was reasonable. The defendant in his plea confessed and admitted a prima facie case for the plaintiff, but failed to allege any good or valid defense in the way of an avoidance. Even if the defendant had been permitted to substantiate the allegations of his plea by evidence, such evidence would not have shown any injury or damage to him, as he did not allege any valid defense in the way of an avoidance. For this reason, any error on the part of the trial judge in refusing to allow the defendant to support the allegations of his plea of confession and purported avoidance by evidence and in directing a verdict against the defendant for the amount of the repairs was harmless to the defendant.
3. The defendant contends in special ground 5 that the judge erred in refusing to allow him to introduce evidence in support of the contentions set out in the amendment to his answer, that the selling price of the machine was to be 85 percent of its cost when new, and that the parties by mutual mistake computed the selling price at $11,500, which the plaintiff paid the defendant; that later the defendant was informed that he had overcharged the plaintiff in the sum of $787, and he sent the plaintiff his check for this amount, which the plaintiff cashed. In his petition, the plaintiff sets out that this check was received and he credited the check on the amount which he claimed as damages. In the amendment, the defendant alleged that it was ascertained and that all the parties conceded "that the selling price, new, was $13,239.00, 85% of which is $11,253.15," and that "in sending the check to Skinker for $787 there was an overpayment *Page 320 of $540.15, for which amount judgment is prayed, together with interest at 7% since the date of said overpayment." Under the allegations of the answer, the defendant was entitled to recover $540.15, or to a credit for this amount on the plaintiff's claim against him. The court erred in refusing to allow the defendant to introduce evidence in support of this portion of his plea and answer and in directing a verdict against him on said item, and in overruling special ground 5 of the motion for a new trial.
4. For the reason assigned in division 3 of this opinion, the judge erred in overruling the motion for a new trial.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, page 232, Code Ann. 24-3501), this case was considered and decided by the court as a whole.
Judgment reversed. MacIntyre, P. J., Felton, Gardner, Parker,and Townsend, JJ., concur.