In cases of implied warranty a partial payment after notice of defects is a waiver of the defects. The court erred in overruling the motion for new trial.
DECIDED OCTOBER 16, 1940. This is the second appearance of this case in this court. Securities Investment Co. v. Jett, 59 Ga. App. 418 (1 S.E.2d 69). The jury again found for the defendant, and the plaintiff excepted to the overruling of its motion for new trial. In the record in the former trial there were only two issues: whether the goods were defective, and whether the defendant knew of the defects or could have discovered them by the exercise of ordinary care before he executed a renewal note for the balance of the purchase-price. In the second trial the evidence presented the same two issues, but there was also other evidence which introduced into the case a question which was not in the first trial. The evidence on the second trial showed that the defendant made a $50 payment on the renewal note after he actually knew of the defects in the goods. The evidence showed that the defendant discarded the goods as useless, and two or three months thereafter paid a partial payment of $50 on the purchase-price. This was a waiver of the defects. The court erred in overruling the motion for new trial.
Judgment reversed. Stephens, P. J., and Sutton, J.,concur.